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US Court: Offensive Trademarks Are Protected by Free Speech

21 June 2017

The court did so on the basis of the First Amendment's free speech clause, which prohibits the government from restricting speech based on the viewpoint or ideas expressed in the speech.

In a firm 8-0 decision, the court slapped down the Patent and Trademark Office for denying a band federal trademark registration for the name "The Slants", a derogatory term for Asian-Americans. "Nothing in the opinion undermines the decisions of the (trademark office's appeals board) or the District Court that the term "redskin" disparages Native Americans".

"After an excruciating legal battle that has spanned almost eight years, we're beyond humbled and thrilled to have won this case at the Supreme Court", Tam said in a statement. "Younger generations seem to have more tolerance for word choices that others may consider offensive". A federal appeals court in Washington later said the law barring offensive trademarks is unconstitutional and the Supreme Court agreed. And this no-viewpoint-discrimination principle has always been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.

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The court's decision will open the door to efforts to register trademarks that - unlike "The Slants" - are meant to disparage certain people or groups. But just as the Indians receive blowback for Chief Wahoo and schools like the University of North Dakota, Miami of OH and others moved away from Native American mascots, public opinion won't simply sway one direction because of the Supreme Court's decision.

"Nothing in the opinion undermines the decisions of the TTAB or the District Court that the term "redskin" disparages Native Americans", the group said in a written statement. If a trademark can be withheld simply because the government does not approve of the content of the speech, then that is clearly an abridgement of the freedom of speech.

Free speech advocates at the time disagreed, arguing that the government should not act as the arbitrator of what speech is and is not offensive. "Washington's football team promotes, markets and profits from the use of a word that is not merely offensive - it is a dictionary-defined racial slur designed from the beginning to promote hatred and bigotry against Native Americans". "I think that their name is forever deemed offensive". "A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all".

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Schiller, the intellectual property attorney at Boies Schiller Flexner in NY, is a lifelong fan of the team. The Redskins also contend their name honors American Indians, but the team has faced decades of legal challenges from Indian groups that say the name is racist.

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US Court: Offensive Trademarks Are Protected by Free Speech