The Redskins and the Slants

A court recently ruled that the law used to deregister the Redskins’ trademarks is unconstitutional.

So how’d that happen?

The Trademark Office refused to grant Simon Tam[1] a registration for THE SLANTS because it’s disparaging to a substantial number of Asian Americans.

Mr. Tam appealed and after some procedural wrangling[2], he ended up in front of a bunch of federal appellate judges[3] who decided to consider whether refusing to register a trademark that’s disparaging is unconstitutional.[4] The Court held that the disparagement bits in the law are unconstitutional, pointing out that the government registers copyrights for disparaging books all the time. If the government tried to reject those copyrights, it would clearly be unconstitutional, so how is this any different?

Not all the judges agreed. One judge argued that the Trademark Office should only apply the disparagement bits of the law when the trademark is just for business (like the Redskins) but not when a trademark is trying to make a free-speechy kind of point (like Mr. Tam). That seems like a lot of deep analysis to ask of an examiner.

So, waddaya think? Should the government register offensive trademarks and let society shame the “bad” owners into changing their ways or should we rely on the Trademark Office to protect our sensibilities? Put another way, do we let the Redskins go on being offensive so that Mr. Tam can reclaim the word SLANT for Asians?

[1] An Asian-America musician (not the Firefly surgeon).

[2] Which is super interesting, but only to lawyers.

[3] At least one of whom might actually be a Redskins fan.

[4] The court considered the Section 2(a) disparagement provision only. The court didn’t rule on the part about immoral or scandalous marks that was at issue in Left Nut Brewing, which they leave to future decisions. Hint hint.

3 thoughts on “The Redskins and the Slants

  1. We have reached a point at which the president of a university may be coerced into retracting her statement that “all lives matter.” Depending upon what individual makes a particular statement, the exact same statement may be vilified or shouted down. I (try not to but do anyway) listen to noise every day which is offensive to me. I’d rather endure such idiotic nonsense, however, than be told by an agency or institution what I should consider offensive. Let the market decide.

    Like

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