Update: The USPTO’s Slanted Viewpoint on Trademark Applications is Unconstitutional
In January, we told you about how the Asian-American rock band, The Slants, had been making noise in the courts for years fighting for the right to register the band’s trademark with the United States Patent and Trademark Office (USPTO). The USPTO had denied registration of the band’s name, citing Section 2(a) of the Lanham Act, which allowed the USPTO to refuse registration of marks that it deemed to be immoral, scandalous, or disparaging.
However, the band is likely singing the Supreme Court’s praises because just this week the Court ruled in an 8-0 onion that this “disparagement clause” violates the First Amendment. The government’s arguments in support of the clause fell flat, and Justice Alito wrote that “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” Thanks to the unanimous ruling, The Slants will likely be able to register their name once and for all.
This is not only good news for the rockers, but for other groups and businesses seeking to protect and profit from their names, brands, etc., as well. This is particularly true for the Washington Redskins. Relying on the disparagement clause, the USPTO canceled the NFL team’s trademarks after over 40 years of registration due to complaints by members of the Native American community. The team should now be able to reclaim its rights to the marks for good.
Intellectual property, including trademarks, can be incredibly valuable assets and are key to protecting against infringement. If you are launching a new band, brand, or product, be sure to work in concert with an intellectual property attorney to keep your business humming along.