'Slants' Is Offensive, and Deserves a Trademark
Should the federal government have the authority to deny legal protection to trademarks and service marks it finds offensive? The debate is one that the U.S. Supreme Court has avoided for decades. But this week, in a case called Lee v. Tam, the justices finally heard argument on the question. Let’s hope they come out in favor of the First Amendment.
Lee v. Tam involves the Slants, a dance-rock band from the Portland, Oregon, area. All the members are Asian-American. In 2011, the group filed an application to register its name as a mark. The application was denied on the ground that “Slants” would be offensive to large numbers of Asian-Americans. The Trademark Trial and Appeal Board upheld the refusal, but the U.S. Court of Appeals for the Federal Circuit reversed the decision.
The judges did not dispute that the mark was offensive. Instead, they ruled that the prohibition on federal registration of disparaging marks violates the First Amendment. Trademarks are a form of expressive speech, the panel wrote, and the government cannot penalize speech because it happens to dislike the message. In an interesting twist, both sides agreed that the Supreme Court should decide the issue.
It’s plain that the band sees its name as a message. Founder Simon Shiao Tam has explained that by naming his band the Slants, he was attempting a “reappropriation,” by which a group seizes control of a disparaging word or phrase, and converts it to a term of pride. Said Tam: “We want to take on these stereotypes that people have about us, like the slanted eyes, and own them.”
The trademark statute does not mention offensiveness. Instead, it bans registration of marks that are “scandalous, immoral, or disparaging.” The Patent and Trademark Office has developed a special test for a proposed mark that “is found to refer to identifiable persons, institutions, beliefs or national symbols.” Registration will be denied when the mark’s meaning “may be disparaging to a substantial composite of the referenced group.” The best-known example of the struggle over how to apply this test is the continuing litigation over the registration of marks owned by the Washington Redskins.
As I noted in this space a few years ago, the ban on registration of offensive marks is largely a relic of the years after World War II, when it was just one among many rules that the U.S. developed to enforce a certain public moral hegemony. The Comic Book Code dates from the same era. Censor Joseph Breen still held sway in Hollywood. Many libraries refused to carry “Invisible Man” and “The Catcher in the Rye.” Unsurprisingly, a number of the Patent and Trademark Office’s rejections for offensiveness stem from this era.
It’s time for a change. We live in a different world now, one in which the protection of speech has become considerably more robust. True, we also live in a world in which advocacy of censoring the offensive has become depressingly popular, especially on the left. What’s striking about Lee v. Tam is how different the support has been from the litigation challenging the Redskins trademark, where much of the left has been siding with the mark’s rejection. In Tam, amicus briefs on the band’s side have been filed by organizations across the political spectrum, from the American Civil Liberties Union to the Rutherford Foundation. Perhaps we only needed to find the right case before it would become obvious that the Patent and Trademark Office shouldn’t have the authority to reward some messages and punish others.
Some supporters of the band, struggling to thread the identity politics needle, have argued that registration of an otherwise offensive term for an ethnic group should be permitted when the mark is used by members of the group. Under this theory, only outsiders should be unable to register the mark. This approach would suggest, for example, that the Redskins mark would be fine if used by a Native American team. (And some Native American teams do use it.) But it’s not at all an attractive solution. The last thing we need is a Patent and Trademark Office that sorts applications according to the race or ethnicity of the applicant.
We’re better off facing squarely the First Amendment issue raised by Tam’s “reappropriation”: Should the federal government have the authority to deny the privileges that come with registration because it dislikes the message a mark expresses? Our answer should be a resounding no.
Imagine a statute providing that any organization whose name the federal government finds offensive will receive no assistance if someone steals its physical property. We would be rightly appalled, and we would have no difficulty perceiving the unconstitutionality of the law. Why should the rule be different when the property is intellectual rather than physical? The social loss from permitting theft would seem to be the same in both cases.
The issue is not whether you or I happen to like disparaging marks. I don’t. There is far too much vulgarity and offense in our public life. I hate it all. But when the government penalizes it, the First Amendment is violated. The protection of messages we hate is what free speech is for.
To be sure, the problem does not arise only within the U.S. Most countries have similar restrictions. For example, the bureaucrats of the European Union possess the authority to reject a proposed trademark deemed “contrary to public policy or to accepted principles of morality.” In 2004, the mark “Bin Laden” was rejected, even though the company filing the application had been doing business in Europe under that name for many years. More recently the EU denied registration to a mark that incorporated an offensive term for people of Pakistani origin. Other rejected marks have pictured Nazi insignia or the symbol of a well-known band of football hooligans.
But the right of free speech is more robust in the U.S. than it is abroad. And Lee v. Tam presents a case in which we should be comfortably saying that we are right and the world is wrong. Here’s hoping the Supreme Court agrees.
The Becket Fund, on whose advisory board I serve, also filed an amicus brief supporting the band. I had no involvement in the decision to file the brief or the determination of any part of its content.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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