It’s a big day for trademark law at the Supreme Court. And by all accounts, a big line to get a seat, as well.
It’s not often that the nation’s top court hears trademark cases. And this is a sexy one, with far-reaching implications.
Asian-American rock band, The Slants, is appealing the USPTO’s refusal to register their name on the grounds that the mark is disparaging. The Slants’ website jokes about it, calling themselves “The Band Who Must Not Be Named.”
Section 2(a) of the Trademark Act states that the USPTO may not grant registrations of marks that are (among other reasons) disparaging. The USPTO contends that the mark THE SLANTS is offensive slang for Asians, and thus may not be registered.
The Slants themselves argue that Section 2(a) violates the free speech guarantee of the First Amendment. Frontman Simon Tam argues that the use of the term is “reappropriation” — adopting a demeaning term and wearing it as a badge of pride.
“We need to allow freedom of expression, especially with those you disagree with the most,” says Tam. “Satire, humor, wit and irony — those are the things that will truly neuter malice.”
This is not just a case about a Portland-based rock band. The Redskins are obviously watching this case closely as well. Owner Daniel Snyder’s effort to keep six trademark registrations that had been cancelled by the USPTO in 2014 now hinges on The Slants’ success or failure. A ruling in favor of the band could strike down the “disparaging” clause of Section 2(a).
Across the board the Supreme Court Justices sounded sympathetic to the band members’ claim.
During the arguments the justices seemed to agree with the band that the government was indeed favoring some trademarks while disapproving others. This kind of discrimination is classified as “viewpoint discrimination” that is traditionally forbidden by the First Amendment of the U.S. Constitution that guarantees free speech.
“You can say something good about somebody, but you can’t say something bad about somebody,” Justice Elena Kagan said. “I would think that is viewpoint discrimination.”
However, the justices suggested that the government’s action provided The Slants with many other options for their brand.
“No one’s stopping your client from calling themselves ‘The Slants,’ ” Justice Sonia Sotomayor told the band’s attorney. “No one is stopping them from advertising themselves that way.”
Moreover, Kennedy then questioned whether the trademark system could be like a public park “where you can say anything you want.”
Justice Ruth Bader Ginsburg expressed her concern of vagueness to Deputy Solicitor General Malcolm L. Stewart. Who countered that “it’s not surprising that there is some inconsistency,” expressing that the USPTO handles roughly 300,000 trademark applications annually.
Conservative Justice Anthony Kennedy asked the band’s attorney, John Connell, whether a group of non-Asians using the name The Slants to mock Asians could be denied a trademark.
Connell stated that the government could not deny a trademark to such a band.
“The First Amendment protects absolutely outrageous speech insofar as trademarks are concerned?” Kennedy asked.
“That is correct,” Connell said.
“I think you have to take that position,” Kennedy replied.
The USPTO is represented by its own attorneys and attorneys from the U.S. Department of Justice.
The band is represented by John Connell, Ronald D. Coleman and Joel G. MacMull of Archer & Greiner PC, and Stuart Banner and Eugene Volokh of the University of California, Los Angeles, School of Law.
The case is Lee v. Tam, case number 15-1293, in the Supreme Court of the United States.