U.S. Supreme Court unanimously rules in favor of trademark protection for offensive terms

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An Asian-American band has a first amendment right to call itself The Slants and to register it as a trademark, ruled the U.S. Supreme Court in a unanimous decision.

At issue in Matal v. Tam was a federal law prohibiting the registration of any trademark that may "disparage…or bring…into contemp[t] or disrepute" any "persons, living or dead." The Patent and Trademark Office cited this provision in 2011 when it refused to register a trademark in the name of The Slants, thereby denying the band the same protections that federal law extends to countless other musical acts. Justice Samuel Alito led the Court in striking down the censorious rule. "We now hold that this provision violates the Free Speech Clause of the First Amendment," Alito wrote. "It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."

The case could inform arguments over other, much larger entities than The Slants.

As NPR’s Nina Totenberg has reported, "the trademark office has denied registration to a group calling itself "Abort the Republicans," and another called "Democrats Shouldn’t Breed." It canceled the registration for the Washington Redskins in 2014 at the behest of some Native Americans who considered the name offensive."

Today’s decision also has the potential of alleviating a great amount of confusion as the U.S. Patent and Trademark Office’s response to offensive marks hasn’t been particularly consistent over the years. For example, N.W.A — the rap group also known as Niggaz Wit Attitudes — was able to register while actor Damon Wayans couldn’t obtain "Nigga" for clothing. Bravo’s Queer Eye for the Straight Guy and Channel Four’s Queer as Folk were fine, but not the registration from a group of lesbians who wished to sell videos of a "Dykes on Bikes" parade. Alito notes in his opinion that the "vagueness of the disparagement test and the huge volume of applications has produced a haphazard record of enforcement."

In a Facebook post after the decision, Tam wrote:

“After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.”

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