WASHINGTON — The Supreme Court announced today that it will examine the constitutionality of a federal law that directs the United States Patent and Trademark Office to refuse the registration of a trademark that disparages “persons, living or dead, institutions, beliefs or national symbols.”
The case at hand involves Simon Tam, an Asian-American musician and political activist who named his rock band “The Slants” in an attempt to take back a term that once directed as an insult. He sought to register the name with the trademark office.
The request was denied on the ground that it is disparaging to “persons of Asian descent.”
The case could also impact the Washington Redskins who have a similar petition pending. The Supreme Court granted seven other cases and the new term is set to begin next week.
Lawyers for the band say that the so called disparagement provision of the Lanham Act is unconstitutional because it violates the First Amendment. A lower court ruled in their favor holding that the disparagement clause discriminates on the basis of viewpoint and content.
The government defends the law, arguing in briefs that “the Constitution does not require Congress to open the federal trademark registration system to racial epithets.”
The government argues that the rock band has a First Amendment right to use “The Slants” in marketing the band but has “no comparable right to force the government to register” the name. According to the government, the sole effect of the law is that various benefits of federal registration would not be available for disparaging marks.
The Washington Redskins are fighting the cancellation of six of their registrations at the appeals court level. Lawyers for the team asked the Supreme Court to take up their case at the same time as “The Slants” case.
The court did not announce what it would do with that petition. Although the loss of a registration wouldn’t strip the team from being able to use the name, it would bar them from federal benefit protections including the right to exclusive nationwide use of the mark.