Recently, the Supreme court heard a case on allegedly offensive trademarks that a performing artist among others tried to pass through patent.
The eight justices heard arguments in a case involving a Portland, Oregon-based Asian-American dance-rock band called The Slants that was denied a trademark on their name because the government deemed it offensive to people of Asian descent. The band challenged the rejection as violating free speech. Trademark registration can help protect product and company names and commercial slogans in court and block the import and sale of counterfeit good. This benefit was not at issue in the lower court decision but any First Amendment test basically ends up in the Supreme Court especially since the case involving removal of the Washington Redskins logo as being offensive was under review.
The decision, which is due out by June, seems to turn around the reaction of a reasonable person to the band’s name. First Amendment issues are muddy at best and in a time of greatly heightened sensitivity over racial issues, the justices may risk showing their insensitivities and personal biases as a group or individually. Free speech applied to trademark or patents may have to come with disclaimer or additional guidelines as some have suggested. In this case the trademark would be granted but with, for example, the understanding that it may not be used to target a group or exhibit any bias. Slants is in context a derogatory term but the connection between the name of a group and any racist action or bias isn’t clear. It depends what slant you take so to speak. Ambiguity doesn’t make for clear guidelines and at issue here is restriction on freedom of speech. Any artist could for example have an inoffensive approved trademarked name but incorporate a racist logo as part of their brand. Or an image of say, a swastika which necessarily offends. But any person could be sensitive to that and would not think separate that which is trademarked (the name) from the logo. The Government is only involved in a narrow test of free speech so their case had to be escalated to the Supreme Court to broaden scope. Race is a protected class at the federal level but what about if my group name I wish to trademark is called “Spastics” or “FatsoFred” or “Aspergers”. Scope in determination of allowability expands here and muddies the waters considerably. Or do we just say “if it offends even one person we won’t allow it..”.
The other concern the justices will have to deal with is to define limits of what would be perceived as a clearly unacceptable name for a band. Presumably one named Dead Judge Hanging would pass muster unless it named said judge!