Supreme Court Ruling on ‘Offensive’ Trademarks Could Mean No More Redskins or Awesome Band Names

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By Stephen Miller | 3:37 pm, October 3, 2016

Early next year, the Supreme Court will hear arguments in a free speech case involving “offensive” trademarks, including that of the Washington Redskins football team. The ruling will have implications for anyone attempting to trademark a business, sports team, or even a punk rock band.

Lee (Michelle Lee, Director of United States Patent and Trademark Office) vs. Tam centers around an Asian-American rock band named The Slants. All four members (Joe X Jiang, Ken Shima, Tyler Chen, Simon Tam) are of Asian decent. Tam has been seeking to trademark their (obviously ironic) name since 2011, but the USPTO has refused, arguing that the name is a racial slur disparaging of Asian Americans.

The Slants

The case was brought before the court after a federal circuit judge ruled the name did not disparage an ethnic group. As per law professor Dennis Crouch’s site patentlyo, the majority decided:

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.

Basically, this case made its way all the way to the Supreme Court because a rock band in Portland, Ore., really wants to use the name. The case will also most likely determine, once and for all, if the Washington Redskins NFL team will have their trademark registration (filed in 1967) reinstated after a federal judge revoked it. SCOTUS has decided not to hear the Redskins’ part of this case.

US Trademark law states that trademark registrations shall generally be approved unless the trademark:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…

Both The Slants and the Redskins have argued that their respective titles are not meant to disparage either Asian Americans or Native Americans. Getting the Redskins to change their team name has been a pet cause amongst DC progressive lobbying groups, despite overwhelming support for the name both by fans and by native groups themselves.

Even President Obama has weighed in on the Redskins “controversy,” and a number of media outlets are refusing to use the team’s name either in print, on the web, or even during game broadcasts, because that’s what rich white east coast liberals do now.

Tam’s legal defense points out that the U.S. government has approved trademarks for titles and names that are arguably just as, if not more controversial than “Slants” or “Redskins,” including: Reformed Whores, Dangerous Negro, Retardpedia, Yellowman, Stinky Gringo, Yid Dish, Midgetman, White Girl with a Booty, Dago Swagg, Redneck Army, White Trash Rebel, Dumb Blonde.

In an age of over-policing of speech on college campuses and in federal government, it’s a bit unsettling the UTPSO and the Supreme Court could rewrite the standards of what, say, punk rock bands or sports teams, if they even exist in the future, are allowed to call themselves. Never mind the irony of an all powerful overburdening bureaucracy controlling what a punk rock band calls itself.

But the Redskins case is equally important. If the highest court in the land rules against trademark protection for terms an overly sensitive appointee deems insensitive, the team will most likely be forced to change its name. And progressive groups won’t stop there because they never do. Then we’re all stuck with this. Go Brooklyn Advocates!



Stephen Miller is a digital media designer and contributor. He also publishes and produces The Wilderness, which focuses on viral politics and culture media.