- Posted by Holmes Weinberg, PC
- On January 18, 2017
DEAD KENNEDYS. SEX PISTOLS. PUSSY RIOT. Band names are sometimes offensive. They also can be service marks governed by the federal Trademark Act and state trademark acts. On January 18th, the US Supreme Court heard oral argument on whether the disparagement provision of the Trademark Act, which provides that no trademark shall be registered which “consists of…matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.
The responding party, Simon Tam, is the founder of an all-Asian American rock band called THE SLANTS, who has stated that the band intends to reclaim the word “SLANTS,” much as the gay community has embraced the word “queer.”
The dispute started when the US Patent and Trademark Office refused registration of THE SLANTS as a service mark for a musical group. Mr. Tam appealed the decision to the Federal Circuit Court of Appeals, which sided with Mr. Tam, reasoning that while some trademarks “convey hurtful speech that harms members of oft-stigmatized communities,” the First Amendment “protects even hurtful speech.”
Recent Supreme Court decisions also have liberally protected offensive speech, including protests at military funerals, depictions of animal cruelty and lies about military achievements. But, federal registration of a service mark is all that is at issue in this case, so even if SCOTUS upholds the Trademark Office’s decision denying registration, THE SLANTS are free to continue using their name. This could prove to be a decisive nuance under a free speech analysis.
Ironically, THE SLANTS in 2011 were added to the US Armed Forces Entertainment Roster and invited to perform for active duty troops overseas. So regardless of whether THE SLANTS can attain federal trademark registration of their mark, at least one government agency has embraced the band and its name; and all the publicity around this case can’t be hurting their booking calendar.