Supreme Court Allows Trademark Registration Of “Derogatory” Terms

On June 19, 2017, the Supreme Court issued its decision in Matal v. Tam (available here). In Tam, a band applied for a federal trademark registration of the band’s name, “The Slants.”

“Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.

The Patent and Trademark Office denied the application due to federal law’s prohibition of the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U.S.C. § 1052(a).

The Supreme Court held that the First Amendment barred enforcement of § 1052(a), because “speech may not be banned on the ground that it expresses ideas that offend.” The Court rejected the argument that registered trademarks are government speech (and, accordingly, could be regulated for content).

The decision not only cleared the way for the band’s trademark registration but, of perhaps greater interest (at least to football fans), will also allow the Washington Redskins to have their trademark.

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