Redskins' trademark usage boosted by Supreme Court ruling

Ivan Schwartz
June 26, 2017

A co-founder of the American Indian Movement says he's disappointed in the U.S. Supreme Court for ruling that that the government can not refuse to register controversial trademarks.

The U.S. Patent & Trademark Office (PTO) and subsequently the U.S. Trademark Trial and Appeal Board (TTAB) had denied registration for the trademark THE SLANTS on the grounds that it was allegedly disparaging. The Trademark Office can deny any trademark that alludes to "immoral deceptive, or scandalous matter; or matter which way disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them unto contempt, or disrepute".

"(The idea that the government may restrict) speech expressing ideas that offend ... strikes at the heart of the First Amendment", wrote Justice Alito in his opinion.

In a unanimous 8-0 decision, the Supreme Court said that clause was unconstitutional.

The dance-rock act were pulled back into court this past January, one year after the United States Courts of Appeal for the Federal Circuit ruled that the US Patent & Trademark Office and the Department of Justice violated The Slants' First Amendment rights.

The American Civil Liberties Union, which filed legal papers supporting the band, hailed the ruling as a major victory for the First Amendment. In short, the decision reaffirms the First Amendment's requirement of viewpoint neutrality when government attempts to regulate private speech.

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Philip Yenyo, executive director of the American Indian Movement of OH, says he does not think Monday's court ruling will help teams like the Washington Redskins and Indians keep monikers that some find offensive. He says he picked his band's moniker in an effort to reclaim a stereotype. "It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks", said Lisa Simpson, an intellectual property lawyer in NY.

Alito wrote: "For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to "make.believe" (Sony), "Think different" (Apple), "Just do it" (Nike), or "Have it your way" (Burger King)?"

However, some are afraid that this incident could result in a precedent that will influence other trademarks, most notably the NFL's Washington Redskins whose marks were cancelled on the basis that the name is disparaging to Native Americans.

The ruling won't put an immediate end to the football team's case.

The government appealed that ruling to the Supreme Court.

"After an excruciating legal battle that has spanned almost eight years, we're beyond humbled and thrilled to have won this case at the Supreme Court".

Other reports by GizPress

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