February 2, 2016

The Slants win First Amendment challenge

By Joshua P. Thompson Senior Attorney

The Slants, a rock band out of Portland, was told it could not trademark its band name because it was “disparaging.” The Trademark Trial and Appeal Board held that the name “The Slants” was derogatory towards Asians, and would not give trademark protection to a racist band name. The leader of the band sued, arguing in part that a prohibition on “disparaging” trademarks is a content-based restriction on free speech in violation of the First Amendment.

The Slants, you see, is fronted by an Asian-American singer, and has other Asian band members. The band leader, Simon Tam, chose the name “The Slants,” because he wanted “to own” the stereotype. The racial connotation of “slants” was foremost in Tam’s mind when he chose the band name. As the Federal Circuit recognized, “Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country.”

Sitting en banc, a sharply divided court not only ruled in favor of Tam, but also struck down the entire section of the Lanham Act that prohibits “disparaging” trademarks. The Court held that “[a]ll of the government’s proffered interests boil down to permitting the government to burden speech it finds offensive. This is not a legitimate interest.” In other words, the government cannot just ban speech because it finds that speech demeaning or racist. “Even when speech inflicts great pain, our Constitution protects it to ensure that we do not stifle public debate.”

There were a lot of eyes on this case. Ten amicus briefs were filed — one by Pro Football, Inc. Why does pro football care about the ability of a band to trademark a disparaging term? Well, because it wants to protect the trademark of the Washington Redskins. Perhaps Tam’s case with the Slants will go to the Supreme Court — if it does, PLF will be there. No word yet on whether the government is going to appeal.  If the government does not appeal, you can be sure that the case against the Washington Redskins will be raising these same issues.

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