Supreme Court Rules Overwhelmingly To Strike Down “Disparagement Clause” Used To Bar Offensive Trademarks

Supreme CourtThe U.S. Supreme Court handed down a major victory for free speech on Monday in striking down a provision of the Lanham Act that barred registration for “disparaging” trademarks.  The decision came in Matal v. Tam, a case that we have been following.  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 predicted, the ruling answered  the question raised in the prior column in controversies like the denying of trademark protection to the Washington Redskins.  The decision is good news for Washington’s NFL team, which lost its trademark because its name is disparaging to Native Americans.


Tam is the “front man” for the Asian-American rock band The Slants and, in 2010, filed an application seeking to register the mark THE SLANTS.  Tam’s group called itself the Slants because it wanted to “reclaim” and “take ownership” of stereotypes about Asians.

The Lanham Act provision, known as the “disparagement clause,” bans the registration of a trademark that may disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  I have been highly critical of the provision for years in both columns and testimony before Congress.  Now it is gone but I remain perplexed how Congress failed to act on the matter to protect free speech for so many years.  One obvious reason is that many legislators lined up praising the denial of trademarks as entirely proper.   House Minority Leader Nancy Pelosi celebrated the denial of the trademark, which clearly contravened free speech protections.  Sen. Harry Reid not only praised the action but predicted that the Redskins name would be gone within three years. That was in 2014.  Democratic Senator Maria Cantwell said, “We’re so excited to know that finally people are recognizing that this issue can no longer be a business case for the NFL to use this patent.”

Fortunately, the Supreme Court has shown the faith and fealty for free speech that is so conspicuously absent in Congress.  Justice Samuel Alito wrote. “It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”   Alito added: “The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates,” Alito added. “If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

350px-Washington_Redskins_logo.svgThat was a view shared by eight out of nine justices — showing just how far these members and commentators were outside of the lines for free speech.  The Redskins should now be in a good position to dismiss the earlier ruling on its trademark. The matter will remain where it should have been left: to the court of public opinion.

The seven other members of the court agreed that the provision amounted to viewpoint discrimination, though four of the justices wrote separately to state that the holding made it unnecessary to give extended treatment to other questions raised by the parties.

In the separate opinion, Justice Anthony M. Kennedy said the registration had been denied not because the Slants intended to demean or offend, but because the government thought the trademark would have that effect on some Asian-Americans.

“The government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience,” Kennedy wrote.

All eight justices agreed that trademarks are not government speech, which would have required a different analysis.

Here is the opinion: Matal v. Tam

83 thoughts on “Supreme Court Rules Overwhelmingly To Strike Down “Disparagement Clause” Used To Bar Offensive Trademarks

  1. Phil Simms started to call the Redskins the team from Washington. Now I call Phill Simms the announcer fron New York.

  2. Supposedly the Washington Redskins are going to change their. From now on they are to be called “Redskins”!

  3. @Squeeky Fromm, Girl Reporter, June 21, 2017 at 5:44 PM

    “Painful for me to contemplate??? Huh??? I contemplate painful stuff all the time. Every time I turn on the news I have to contemplate painful and stupid stuff. Like people ginning up fake outrage over silly things like the ‘Redskins’ name and log. That kind of stuff is sooo stupid it makes me hurt.

    “And what part of, ‘I too am a Native-American!’ did you not get??? Maybe I need to say it differently. . .Hmmm. OH!

    “ ‘Ich bin ein redskin!’ ”

    Way to miss the entire point, Pocahontas. 🙂 The issue isn’t whether you frequently find something painful to contemplate, but what you do with information that’s painful for you to contemplate.

    Do you reject it out of hand and try to dismiss it from your mind because “it’s sooo stupid,” or do you try to incorporate into your own thinking the large or small grain of truth in the painful phenomenon in question? If there weren’t some grain of truth in what’s painful to contemplate, then why is it painful?

    Overall, Princess, considering how you deal with disagreeable information, would you say your mind is waxing or waning? 🙂

  4. @Squeeky Fromm, Girl Reporter, June 21, 2017 at 11:52 AM

    How many American Indians did you consult among your circle of friends and acquaintances before you felt it was okay to cite the Washington Post poll? 🙂

    Girl Reporter, you’re in serious danger of giving yourself a mental hernia from defending yourself so strenuously against cognitive dissonance.

    Have you ever considered that what you call “Reality” may be just the constricted world view you’ve imposed on yourself by rejecting any evidence that doesn’t comport itself comfortably with the fragmented and partial knowledge that constitutes the cognitive bubble in which you think and emote? .

    You can, of course, continue to egregiously cherry-pick evidence as you confess to doing, or you could seriously consider the possibility that just because something is painful for you to contemplate doesn’t make it untrue.

    If Goethe was right (and I think he was), our consciousness can’t remain static, but instead will either contract or expand, and we obviously can’t expand our consciousness by rejecting without examining it, evidence that’s mentally painful, i.e., conflicts with what we think we want to believe.

    Ignorance may be bliss for a time, Squeeks, but only until Reality gets around to biting us in our ignorantly tender parts.

    • Painful for me to contemplate??? Huh??? I contemplate painful stuff all the time. Every time I turn on the news I have to contemplate painful and stupid stuff. Like people ginning up fake outrage over silly things like the “Redskins” name and log. That kind of stuff is sooo stupid it makes me hurt.

      And what part of, “I too am a Native-American!” did you not get??? Maybe I need to say it differently. . .Hmmm. OH!

      “Ich bin ein redskin!”

      Squeeky Fromm
      Girl Reporter

  5. @Squeeky Fromm, Girl Reporter, June 20, 2017 at 2:29 PM

    “Nine in 10 Native Americans say they are not offended by the Washington Redskins name, according to a new Washington Post poll that shows how few ordinary Indians have been persuaded by a national movement to change the football team’s moniker.”

    https://www.washingtonpost.com/local/new-poll-finds-9-in-10-native-americans-arent-offended-by-redskins-name/2016/05/18/3ea11cfa-161a-11e6-924d-838753295f9a_story.html?utm_term=.7adc4f06c626 Squeeky Fromm, Girl Reporter, June 20, 2017 at 2:29 PM

    I see that you’ve overcome your recently expressed aversion to the “crap” of MSM polls, Squeeks

    If one didn’t know better, one might suspect that your assessment of them depends on whether or not they support your pronounced emotional prejudices. 🙂

    • You said, “If one didn’t know better, one might suspect that your assessment of them depends on whether or not they support your pronounced emotional prejudices. ”

      Close. But more like “If one didn’t know better, one might suspect that your assessment of them depends on whether or not they support your pronounced emotional prejudices what you see around you from the people you know and meet.”

      Because I take polls, and scientific studies, with a grain of salt. Some I believe, and some I don’t. You think that is based on my “emotions”, and therefore that my “emotions” determine Reality for me. But you do not consider that maybe the opposite is true. That it is Reality that determines my “emotions.” Think about it.

      Squeeky Fromm
      Girl Reporter

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