by Gordon Hull
An important trademark and First Amendment case was decided in the Federal Circuit yesterday. In it, the Court ruled in favor of Simon Tam, who named his band “The Slants.” When he attempted to register the band name as a trademark, the Patent and Trademark Office (PTO) rejected the mark as “disparaging,” arguing that the First Amendment does not allow government to disfavor speech that it disapproves of the message it contains. Per the Court:
“The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech.”
The Court thus rules that the PTO needs to allow the mark to be registered (for a quick blogpost, see here). A lot of people think this case has ramifications for whether the Washington "Redskins" should be allowed to keep their trademark registrations (they were canceled by the 4th Circuit; the Washington Post has a long list of rejected marks here). The conflict between the circuits raises the odds of Supreme Court review. I wrote about the Redskins case when it came out, and a lot of what I said there applies here. In that post, I expressed some support for the PTO, because I wonder if the case shouldn’t be framed as viewpoint discrimination so much as whether one has a constitutionally protected right to a government subsidy for speech that it does not endorse. But it's not a comfortable road to travel, as I based my argument on abortion cases, Rust v Sullivan in particular, that I wish were decided the other way.