The Supreme Court heard a trademark case today that does not involve the The Washington R*dsk*ns™ directly, but will almost certainly determine the team’s right to trademark their name. As some may recall, the Patent and Trademark Office ruled a while ago that The Washington R*dsk*ns™ couldn’t trademark their name under the argument that disparaging names could not be trademarked. Critics of the team name — otherwise known as people who aren’t racist — had hoped that by depriving team owner Daniel Snyder of the trademark, he’d be more inclined to change the team name because without trademark protection, anyone could sell The Washington R*dsk*ns™ merchandise.
Snyder didn’t balk, so attached he is to a racist team name. The case is currently on appeal.
Meanwhile, in a related case In Re Tam — which The Washington R*dsk*ns™ filed an amicus brief in support of — a similar issue is facing The Supreme Court. Specifically, the founder of an Asian American band called The Slants requested a trademark, but was denied because “The Slants” is disparaging to Asians.
OK, but …? That doesn’t sound right, does it? Shouldn’t an Asian-American band be able to trademark The Slants?
Maybe. But if we allowed that, then Snyder would be able to trademark the Washington R*dsk*ns, right?
The ACLU, oddly, is on the side of The R*dsk*ns. The ACLU argues that the Lanham Act — which controls this issue — is unconstitutionally vague in its wording. The Lanham Act states that trademarks will not be granted if they “disparage … persons living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The Supreme Court hasn’t decided on the issue, but according to the Post, the majority of the Court — on both sides of the political spectrum — seems to be leaning toward allowing The Slants to have their trademark, arguing that to do otherwise would mean allowing the government to engage in viewpoint discrimination.
They’re not wrong, but it’s tricky. As it stands, there’s nothing stopping The Slants or the R*dsk*ns from using their names; they just aren’t afforded trademark protection. Should the government be in the business of deciding what is disparaging and what is not? Maybe not, but then, people could trademark some truly vile names or logos — like “Grab America by the P*ssy,” — in effect receiving the government’s endorsement.
This gets into free speech territory, and it’s a dicey issue. However, if we allow an Asian-American band to trademark The Slants, or Tina Fey (hypothetically) to trademark the term, “Bitches Get Sh*t Done,” then we’d necessarily have to allow Daniel Snyder to trademark The Washington R*dsk*ns™. Ultimately, I side with the ACLU. It shouldn’t be up to the trademark office to decide what is and is not disparaging; it should be left to consumers, who ought to have sense enough to reject offensive or vile names.
I did love this, from the SCOTUS hearing, however.
Breyer asked about a hypothetical “Joe Jones is a jerk” registration; Sotomayor wondered about a trademark “Trump is a thief.”
via Washington Post