U.S. Supreme Court justices fret over offensive trademarks; Reuters, 1/18/17

Andrew Chung, Reuters; 

U.S. Supreme Court justices fret over offensive trademarks

"The justices during the arguments seemed to agree with the band that the government was favoring some trademarks while disapproving others, a kind of discrimination based on viewpoint traditionally forbidden by the First Amendment of the U.S. Constitution, which guarantees free speech.

But the justices appeared to struggle over whether banning offensive slurs is reasonable in the trademark system, which is used to promote commerce.

Conservative Justice Anthony Kennedy asked the band's attorney, John Connell, whether a group of non-Asians using the name The Slants to mock Asians could be denied a trademark. Connell said they could not.

Kennedy questioned whether the trademark system should be considered like a public park "where you can say anything you want.

In rejecting The Slants' trademark, government officials relied on a provision of the 1946 Lanham Act that prevents the registration of marks that may disparage certain people."

In Battle Over Band Name, Supreme Court Considers Free Speech And Trademarks; NPR, 1/18/17

Nina Totenberg, NPR; 

In Battle Over Band Name, Supreme Court Considers Free Speech And Trademarks

""Vagueness means that a law doesn't give enough instruction to citizens on how to follow the law," Shapiro says. "What is disparaging? It depends on the particular trademark examiner you get, or the particular judge."

Tushnet replies that in a program with 500,000 applications for trademark registration each year, there will inevitably be some inconsistencies, just as there are in the judgments made under the other parts of the law. In each case, she observes, if you get turned down for a trademark registration, you can appeal within the agency. If you lose there, you can go to court.

But she adds that the trademark registration system has served the nation well.

"It's a complex system, and if you pull out a chunk of it without extreme care, you're going to upset the rest of the system."

And that, she says, could put the whole trademark system in jeopardy."

SCOTUS To Hear From Band The Slants For Right To Trademark Name; Here & Now, WBUR, 1/17/17

Here & Now, WBUR; 

SCOTUS To Hear From Band The Slants For Right To Trademark Name

"The Asian-American band The Slants will appear before the U.S. Supreme Court on Wednesday to argue for full trademark rights to their name, which is a pejorative.

The Portland band has won its case in the United States Court of Appeals for the Federal Circuit, in which the court ruled that the Patent and Trademark Office and the Department of Justice is infringing on the group's rights to freedom of speech.

Here & Now's Robin Young speaks with Rebecca Tushnet (@rtushnet), professor of law at Georgetown Law School, about the conflict for rights to the name."

U.S. top court refuses to hear Redskins trademark appeal; Reuters, 10/3/16

Lawrence Hurley, Reuters; U.S. top court refuses to hear Redskins trademark appeal:

"The U.S. Supreme Court on Monday declined to hear an appeal by the Washington Redskins challenging a federal agency's decision to cancel the National Football League team's trademarks after finding the name disparaging to Native Americans.

While the justices refused to hear the team's appeal, the issues it raises are part of another case that the court last week agreed to hear involving the Oregon-based Asian-American rock band The Slants whose bid for trademark protection of its name was denied by the U.S. Patent and Trademark Office.

Both the band and the team have argued that a 1946 federal law barring trademarks on racial slurs violates free speech rights under the U.S. Constitution's First Amendment.

The Supreme Court opted not to hear the Redskins' appeal of a federal judge's ruling in July 2015 that upheld the Patent and Trademark Office's 2014 decision to cancel six trademarks held by the team and provided another victory for Native American activists pressing the franchise to change its name."

Warning: This article on trademarks may include language deemed ‘scandalous, immoral or disparaging’; Washington Post, 9/30/16

Fred Barbash, Washington Post; Warning: This article on trademarks may include language deemed ‘scandalous, immoral or disparaging’ :

"It is a law called the Lanham Act that gives the federal government the power to refuse to register or to cancel trademarks deemed scandalous, immoral or disparaging — let’s call it SIOD for short.

On the basis of that law, the United States Patent and Trademark Office, for example, determined that Redskins, as in Washington Redskins, was SIOD and canceled its trademark...

The primary purpose of the 1905 Trade Mark Act, later reenacted as the Lanham Act in 1946, is twofold, as Carpenter and Murphy wrote in their law review article, “including lessening of consumer search costs and encouraging producers of goods and services ‘to invest in quality by ensuring that they, and not their competitors, reap the reputation-related rewards of that investment,’ thereby protecting consumers from deceptive practices.”...

What is SIOD?

“It is always going to be just a matter of the personal opinion of the individual parties as to whether they think it is disparaging,” said the PTO’s assistant commissioner in 1939, as he explained his own discomfort."