The U.S. Supreme Court ruled unanimously Monday that the government cannot refuse to register a trademark because some may find the trademarked words offensive, saying that the disparagement clause of the copyright law is not an anti-discrimination clause but, rather, a “happy-talk” clause.
Suggested Reading
The 39-page opinion (pdf) in Matal v. Tam ruled in favor of Simon Tam and his Asian-American rock band the Slants, giving them the go-ahead to trademark their band’s name. As Ars Technica notes, the ruling is also relevant to the high-profile case involving the NFL’s Washington Redskins, who were in danger of losing their highly offensive trademark but are now likely to be able to retain it under the decision.
The court ruled that the law stating a trademark cannot “disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute,” violates the First Amendment.
When Tam was unable to register his trademark years ago, he took his case to federal court. In 2015 the U.S. Court of Appeals for the Federal Circuit ruled in his favor and found the so-called disparagement clause to be unconstitutional.
The appeals court ruling led the U.S. Patent and Trademark Office to appeal to the Supreme Court with the argument that trademarks are government speech, not private speech, and trademarks should be considered either a form of government subsidy or a government program, but not a citizen’s “free speech.”
The court ruled that calling trademarks government speech is far-fetched. Justice Samuel Alito, in writing for the majority, acknowledged that the anti-disparagement clause seeks to accommodate everyone (“It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue”), but in the sense relevant to this case, it is “viewpoint discrimination. Giving offense is a viewpoint.”
Alito also highlighted the law’s overly broad reach: “It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes,’” he wrote. “It is not an anti-discrimination clause; it is a happy-talk clause.”
Alito continued: “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
From Ars Technica:
Justice Anthony Kennedy wrote a separate, concurring opinion that was also signed by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Those four justices agreed with the overall conclusion of the court but don’t sign on to some parts of the analysis, arguing instead that the constitutional ban on “viewpoint discrimination” renders some of the majority’s analysis unnecessary. They further argue that whether or not trademarks are commercial speech—an issue not resolved by this opinion—the issue deserves the “heightened scrutiny” required when analyzing government regulation of speech.
Monday’s ruling likely means that the Redskins will not be stripped of their name and trademark. The ongoing controversy surrounding the team’s unwillingness to change their name even after they have been told how offensive it is to many indigenous people will continue, but there may no longer be legal recourse to force a name change.
Ron Abramson, an intellectual property attorney with the Lewis Baach law firm, told Ars Technica in an email: “There will surely be a rash of fringe (and truly offensive) trademark filings as a result of this decision. However, none of them will likely ever be major brands, thus the issue should not have great practical significance.”
Read more at Ars Technica.
Straight From 
Sign up for our free daily newsletter.