Supreme Court decides offensive trademarks are protected speech after all
Good news for the Washington football team, bands with possibly racist names and anyone who has a Swastika-based startup: The Supreme Court ruled Monday that a law banning offensive trademarks is unconstitutional. According to ABC News, the court ruled that a 71-year-old law that barred disparaging terms from obtaining a trademark violates free speech rights.
The case was based on an Asian-American rock band named The Slants, who were denied a trademark for the band name in 2011 on grounds that it disparages Asians. Writing for the unanimous majority (minus new kid Neil Gorsuch, who wasn’t on the court yet when the case was heard), Justice Samuel Alito said the law runs the risk of violating free speech, writing:
“There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”
The case is also a big win for the Washington football team, which has been fighting a separate battle over the trademark of its name that uses a skin color to describe a certain type of human being. In 2014, the U.S. Patent and Trademark Office canceled the registration for the Washington football team at the request of Native American groups who have fought the team over the offensive nature of the name.
Team owner Dan Snyder, a whiteskin, has refused to change the team name, even though doing so would probably result in millions of dollars in sales of new, non-offensive merchandise. “The Unbreakable Kimmy Schmidt” solved this problem in its new season, suggesting the team change its name to something even more offensive: The Washington Gun-Takers.
The trademark office also denied registration to a group called “Abort the Republicans” and another called “Democrats Shouldn’t Breed,” according to NPR.
The court argued that trademarks are private, not government speech, and therefore are protected. So if you’ve been sitting on paperwork to file your Pepe-adorned ride sharing service, now’s your chance.