Asian-American band win top court case over offensive trademark
21 June, 2017, 07:10
The justices ruled that a 71-year-old clause in the Lanham Act, which barred disparaging terms or phrases from receiving federal trademarkregistration, infringed on free speech. The case in question was brought by the Asian-American band The Slants, who had been denied a trademark on the basis that their name was deemed disparaging and offensive.
In his opinion for the court, Justice Samuel Alito rejected arguments that trademarks are government speech, not private speech.
Schiller, the intellectual property attorney at Boies Schiller Flexner in NY, is a lifelong fan of the team.
Now that the Supreme Court has ruled in favor of the Slants, its ruling may encourage the U.S. Court of Appeals for the Fourth Circuit to resolve the Redskins trademark dispute sooner rather than later.
The government argued in the current case and in the Washington case that the issuance of a trademark transforms the potentially offensive term into "government speech". "It sends a strong message from the court that free speech is a fundamental right".
The Supreme Court agreed on Monday, finding 8-0 that an Asian-American band had the right to trademark "The Slants", even though some Asians would find the the term offensive. The Washington Redskins appealed that decision, but that decision was held in abeyance pending The Slants case. But the disparagement clause was the wedge that activists were trying to use to force the Washington Redskins to change the National Football League team's name (the team has been fighting the cancellation of its trademark in court). The same is true for the Redskins, but the team did not want to lose the legal protections that go along with a registered trademark. He is a board certified intellectual property lawyer by the Florida Bar Association.
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The reason, she said, is that "feelings are valid". One can only wonder how many trademarks have been refused registration because certain groups of people found them to be offensive. However, I do think there will be public backlash against names that might be offensive to a particular group of people.
Native American mascots remain highly controversial, and the Gill-Montague Regional School Committee is in the process of changing the Turners Falls High School Indians nickname.
The Pokagon Band of Potawatomi Indians occupies part of northern IN and southern MI.
Like in the Slant's case, defenders of the Redskins say the team's name is not in the spirit of degrading Native Americans, but instead meant to represent the fighting warrior spirit. "It's derogatory and demeaning". Mosiah Bluecloud, a spokesman for the Kickapoo Tribe of Oklahoma, explained the historical origins of the term: "In reference to the paint we used...." It found that 80 percent are not offended if called a "redskin" by a non-Indian. The students took suggestions and then organized a vote, which included alumni who still lived in the area, on the top names.
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