The US Court of Appeals for the Federal circuit [official website] ruled [opinion, PDF] Tuesday that the government cannot refuse to register trademarks that might be considered disparaging or offensive. The ruling sided with the Asian-American rock band The Slants, who tried to register the name as a trademark. The US Patent and Trademark Office (USPTO) [official website] had refused to register the mark or give it any protection on the grounds that it it disparages and is offensive to Asians. The majority in the opinion argued [AP report] that barring offensive trademarks is unconstitutional as “even hurtful speech that harms members of oft-stigmatized communities” is protected under the First Amendment. This ruling overturns [IPWatchdog report] the portion of Section 2(a) of the Trademark Act [statutory language], which bars federal registration for trademarks that are disparaging. It is now up to the government to determine whether to appeal the case to the supreme court.
There has been a great deal of controversy surrounding disparaging trademarks and names over the past few years due to the National Football League (NFL) team, the Washington Redskins. In August 2014 the Washington Redskinsfiled an appeal [JURIST report] in federal court to challenge a June ruling by the Trademark Trial and Appeals Board of the USPTO that found the name “Redskins” is “disparaging of Native Americans.” The Redskins faced a similar ruling by the Board in 1999, which was later overturned on appeal. The August complaint marked the beginning of new litigation [Think Process report], but many of the issues from earlier cases remained unchanged. In June 2014 the USPTO announced that it would cancel six trademark registrations [JURIST report] belonging to the Washington Redskins. Administrative trademark judge Karen Kuhlke cancelled trademarks associated with the team’s name, logo and the name of their cheerleading squad. The Washington Redskins’ name was criticized [JURIST report] by UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, who called in April of last year for the team to change their name out of respect for the “historical and cultural legacy of the Native Americans in the US.” Anaya visited the US in 2012 to launch [JURIST report] the UN’s first ever investigation into the rights situation of Native Americans.