SECTION 2(A) DISPARAGING MARKS – THE SLANTS BEFORE THE SUPREME COURT
On Wednesday of last week, the Supreme Court heard oral arguments regarding the United States Patent and Trademark Office’s (“USPTO”) refusal to register as disparaging the trademark THE SLANTS, claiming that the mark represents an ethnic slur under section 2(a) of the Trademark Act. The Portland, Oregon band founder, Simon Tam, has pointed to the band’s warm reception amongst the Asian-American community and insisted that the name is meant to “reappropriate [the phrase] into something positive and empowering.” While they await the Court’s decision, the band has released a song entitled “From the Heart,” which they have described as “an open letter to the Trademark Office.”
Section 2(a) of the Trademark Act reads in part: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;…” 15 U.S.C. §1052.
During oral arguments, the band insisted that their free speech rights had been violated under the laws dictating trademark registration. Attorney John Cornell, representing The Slants, argued that the government can not burden the “non-commercial aspects” of a name. Whereas Justice Ruth Bader Ginsberg stated that the rules were not being applied consistently in these types of applications for registration, other justices pondered whether imposing no limits on trademark names would represent a slippery slope.
The case has gained particular interest due to the implications the Court’s finding will have on the Washington Redskins. A victory for The Slants would serve as a major boon to the football team, which had its trademark canceled by the USPTO for the offending nature of its name to Native Americans.