I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we have previously discussed in permitted and disallowed trademarks. One of the cases that I have discussed involves an Asian-American rock band called The Slants, which was also barred by the office. Now the band has won a major victory not just for itself but also the first amendment in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. The Court struck down the part of the law allowing the denial of the registration of offensive trademarks. The case, which is likely to appealed to the Supreme Court, will have a major impact on the Redskins controversy.
The Portland, Oregon-based band plays “Chinatown dance rock” and challenged the agency’s determination that it can be denied protection based on the view that they are demeaning to Asians.
Circuit Judge Kimberly Moore wrote that “[w]e recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities.” However, she added that “[w]hatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others.”
I have been highly critical of this poorly crafted law. The law is reflective of a dangerous trend in our government with the rise of federal agencies. I have long criticized the rise of a “fourth branch” within our tripartite system. Agencies have gradually assumed greater authority and independence in the governance of the country, including the resolution of political and social issues like the debate over team names. With the help of a series of Supreme Court decisions, agencies now enjoy sweeping deference in their enforcement of federal laws. Adding to this dominance are judicial rulings giving agencies heavy deference in their interpretations of laws under cases like Chevron. This includes the expanding role of agencies in resolving political and social controversies.
The case is In Re Simon Shiao Tam, U.S. Court of Appeals for the Federal Circuit, No. 14-1203.
Here is the opinion: In Re Simon Shiao Tam