U.S. Supreme Court justices fret over offensive trademarks

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By Andrew Chung | WASHINGTON

WASHINGTON Supreme Court justices walked a
tightrope on Wednesday over government approval of offensive
trademarks, expressing concern about endorsing racial slurs in
brands and slogans while also worrying about protecting only
positive words.

The eight justices heard arguments in a case involving a
Portland, Oregon-based Asian-American dance-rock band called The
Slants that was denied a trademark on their name because the
government deemed it offensive to people of Asian descent. The
band challenged the rejection as violating free speech rights.

The case, one of the most closely watched of the court’s
current term, could impact another high-profile dispute over the
government’s cancellation of the trademarks of the Washington
Redskins of the National Football League for disparaging Native
Americans.

The band’s attorney, John Connell, told the justices the
government cannot use trademark law to impose burdens on free
speech to protect listeners from offense.

“There was no suggestion that this was a politeness
statute,” Connell told the justices.

The Obama administration appealed after a lower court agreed
with the band that part of the 1946 law governing federal
trademarks that barred those that may disparage certain people
ran afoul of the U.S. Constitution’s guarantee of free speech.

Justice Sonia Sotomayor said no one is stopping the band
from calling and advertising themselves as The Slants.

“You are asking the government to endorse your name” in a
way that the government chooses not to do, Sotomayor said.

The band’s legal dispute began when the U.S. Patent and
Trademark Office refused to grant trademark protection for The
Slants’ name in 2013. Some consider it a racial slur referring
to Asian people’s eyes.

The court’s ruling could set parameters for trademark
registration, which can help protect product and company names
and commercial slogans in court and block the import and sale of
counterfeit goods.

Justice Anthony Kennedy asked the band’s attorney, John
Connell, whether a group of non-Asians using the name The Slants
to mock Asians could be denied a trademark. Connell said they
could not.

Kennedy questioned whether the trademark system should be
considered like a public park “where you can say anything you
want.”

The justices seemed to agree with the band that the
government was favoring some trademarks while disapproving
others, a kind of discrimination based on viewpoint
traditionally forbidden by the First Amendment.

‘CLASSIC CASE’

Justice Elena Kagan said that if the government granted
trademarks only for positive messages like “all politicians are
virtuous” and not negative ones like “all politicians are
corrupt,” that would be a “fairly classic case of viewpoint
discrimination.”

While rejecting The Slants for a trademark, the government
has registered other potentially offensive trademarks such as “Baked By a Negro” baked goods, “Retardipedia” and “Boobs as
Beer Holders” adult videos, according to court papers.

The justices appeared to struggle over whether banning
offensive slurs is reasonable in the trademark system, which is
used to promote commerce and identify where products come from.

The Slants’ frontman Simon Tam appealed the government’s
trademark rejection, saying the name was chosen as a way to
reclaim the term and wear it as a “badge of pride.”

The U.S. Court of Appeals for the Federal Circuit in
Washington ruled in 2015 that the disparagement provision of the
1946 Lanham Act was unconstitutional.

The government should not be required to approve trademarks “containing crude references to women based on parts of their
anatomy; the most repellent racial slurs and white-supremacist
slogans; and demeaning illustrations of the prophet Mohammed and
other religious figures,” the Obama administration said in a
written brief to the Supreme Court.

Several justices wondered how to avoid problems of slander
or libel if offensive trademarks can never be rejected.
Referring to President-elect Donald Trump, Sotomayor offered the
example of someone trademarking the words “Trump is a thief.”

Even if a court considered that to be slander, the trademark
could still be used because it would be protected by the First
Amendment, she said. “That makes no sense,” Sotomayor said.

Justice Stephen Breyer said the trademark law is not meant
to provoke people into arguments, which officially registering
insults and slurs would do.

A decision in is expected by the end of June.

In the separate Redskins’ case, a trademark board in 2014
canceled the team’s six trademarks at the request of Native
American activists on grounds that the team name disparaged
Native Americans. The team’s appeal, also on free speech
grounds, is on hold in the 4th Circuit Court of Appeals in
Richmond, Virginia, pending the outcome of The Slants’ case.

The case is in the Supreme Court of the United States is
Michelle K. Lee v. Simon Shiao Tam, No. 15-1293.



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