American band the Slants win Supreme Court battle over offensive trademarks

Lynette Rowe
June 21, 2017

The Supreme Court has now affirmed the lower appeals court's opinion, which is also potentially welcome news for the NFL's Washington Redskins, whose own marks were canceled for being disparaging to Native Americans.

"The justices ruled that the 71-year-old trademark law barring disparaging terms infringes free speech rights", the AP reports. "It canceled the registration for the Washington Redskins in 2014 at the behest of some Native Americans who considered the name offensive".

Members of the Portland, Oregon-based Asian-American rock band The Slants (L-R) Tyler Chen, Ken Shima, Simon Tam, Joe X. Jiang pose in Portland, Oregon, U.S., August 21, 2015 in a picture released by band representatives.

The Supreme Court declared on Monday that it is unconstitutional for the federal government to refuse to register trademarks that can be considered offensive, according to Politico. "The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination".

The long and winding road regarding whether Washington will lose federal trademark protection for its name and logo isn't officially over, but it essentially is.

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On Monday, Justice Samuel Alito in the main opinion in the case sided with the band. They were able to successfully do that, and if the Redskins use a similar argument, there is a good chance that the courts will utilize the precedent set in the Slants case to rule in favor of the Redskins.

Despite intense public pressure to change the name, Snyder has refused, saying it "represents honor, respect and pride". And now with The Slants' win at the court, the Redskins team may soon be able to also get its name trademarked as well.

The section of the law at issue bars the trademark office from registering a name that may "disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute".

Considering Washington plays in a league that has shown absolutely no interest in preventing the team from using the name, there seems to be no end to the R**skins nickname in sight.

In support of the disparagement clause, the Government argued that (1) trademarks are government speech, not private speech; (2) trademarks are a form of government subsidy; and (3) constitutionality should be determined under a "government-program" doctrine. It was a resounding defeat for political correctness, as the ruling on Monday will widely be seen as having much broader implications. But some say the government approval of trademarks confers more than a commercial benefit and suggests tacit government approval of the slurs.

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