How offensive will high court allow marks to be?
Four white men, two white women, a Latina, and an African-American soon will decide how blunt, vulgar, and racist trademarks in the United States may be. This esteemed, older, and not necessarily greatly diverse group will consider whether Asian American musicians may “re-appropriate” Slants, a traditional slur against their ethnic group, and obtain formal, legal exclusivity and commercial protections for that term. But Redskins, another racial term deemed offensive and derogatory, especially to Native Americans, another minority group in this country, will not be part of the deliberations for now by, of course, the justices of the U.S. Supreme Court. Their impetus for examining the issue of “scandalous, immoral, and disparaging,” trademarks — a topic this blog has taken up before — resulted from an appeal by no less than Uncle Sam, who said the important issue had gotten unclear and messy for the multicultural nation. Here’s why: How the ‘disparaging marks’ case arose The high court, which has become active in taking on free speech and First Amendment-related issues in recent times, didn’t surprise many analysts when it announced recently that it would hear Michelle K. Lee v. Simon Shiao Tam, a challenge to the constitutionality of key provisions of the 1946 Lanham Act. The act gives the U.S. Patent and Trademark Office the authority to deny registration to potential marks because they “may disparage […] persons,...
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