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, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” The precise question presented to the justices in Lee v. Tam is “whether the disparagement provision in 15 U.S.C. 1052(A) is facially invalid under the Free Speech Clause of the First Amendment.”
Lee v. Tam has been a crusade by the “front man” of “The Slants,” a dance music band, and his colleagues. They challenged recent PTO rulings refusing to gran them a mark on the band’s name. That’s because the agency, based on objections from the public, ruled that the term disparages those of Asian descent. Tam twice (in 2010 and 2011) sought to register “The Slants” as a mark.
Trademark officials turned away the Slants as part of their increasing rejections of what they deemed other similarly offensive marks, such as “Stop the Islamization of America” (disparaging to Muslims). In Pro-Football Inc. v. Amanda Blackhorse, et al., officials cancelled the mark of the National Football League’s Washington Redskins, saying it was offensive to Native Americans. [Indeed, part of the coverage of Lee v. Tam, plus the NFL case seems to take almost juvenile glee in noting all the approved and puerile marks already in the market.]
The NFL case is awaiting a hearing before the U.S. Court of Appeals for the Fourth Circuit. The team filed an amicus brief, begging the high court to take its mark controversy up now before the appellate court would do so, and to consolidate it with the consideration of Lee v. Tam. The justices declined to do so.
In Tam, the Asian American band members say the PTO’s refusal to let them have their mark, which they say is their way of retaking the slur against Asians, violates their First Amendment free speech rights.
An appellate ruling in Tam’s favor
The highly influential U.S. Court of Appeals for the Federal Circuit has agreed, ruling 9-3 (en banc) in the musicians’ favor. In a detailed majority opinion from the appellate court,U.S. Circuit Judge Kimberly Ann Moore artfully noted that the government cannot refuse to register marks just “because it disapproves of the expressive messages conveyed” by them. She wrote that “The government regulation at issue amounts to viewpoint discrimination.”
The appellate court said the mark law’s section 1052(a) was facially invalid, with Moore writing that, though some of the unapproved marks, “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”
Patent and trademark officials, however, chose to contest the appellate ruling—with the Asian American band members’ support. Officials said the high court needed to clarify mark law and free speech issues, because, after all, the government wasn’t constraining Americans like the Slant musicians from using offensive terms. The government said they certainly could do so but without the exclusivity and legal protections afforded by a mark in commercial situations.
The high court has not set a schedule for oral argument in Lee v. Tam, and the justices’ caseload in the coming months will itself be a subject of considerable public and even political attention. That’s, of course, due to the recent death of Justice Antonin Scalia, and the partisan wrangling over who might replace him so the nation’s top court will not face the prospect of yet more tie-vote deadlocks.