Today, the Supreme Court of the United States will hear oral arguments in Lee v Tam, a case involving the Patent and Trademark Office’s refusal to register an Asian rock band’s name--“The Slants”--on the grounds that the term disparages Asians. You can follow the developments on SCOTUSblog.
The Lanham Act’s disparagement clause prohibits the registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 USC 1052(a). A federal appeals court held that the disparagement clause violates the first amendment protection of free speech. But the PTO contends that the band is free to choose whatever name they like—the government just isn’t obligated to offer them trademark protection.
Some scholars believe that this case is about free speech and individual liberty, arguing that “moral censors” shouldn’t be able to limit the “marketplace of ideas.” But that is probably too simplistic. Other issues to consider are whether marginalized groups should reclaim offensive terminology in an empowering way or whether the government should offer commercial protections to hate speech.
In my view, the more compelling issue in Lee isn’t whether the disparagement clause violates the first amendment, but rather whether the clause is unconstitutionally vague. Who defines “disparagement”? Can a mark that was once innocuous become disparaging over time? The Trademark Trial and Appeal Board granted a request to cancel “Redskins” as a trademark in 2014 (and SCOTUS denied certiorari, though the outcome of Lee v Tam may impact the case). But the NFL registered the same mark between 1967 and 1990, so what changed? The disparaging nature of the mark? Cultural sensitivities? Something else?
In fact, there is currently no way to predict whether the PTO will find a mark disparaging or not. For example, the PTO denied registration of “HAVE YOU HEARD SATAN IS A REPUBLICAN” because it disparaged the Republican Party, but granted protection to “THE DEVIL IS A DEMOCRAT.” The terms “Heeb,” “Dago,” “Injun,” and “Squaw” have all been both accepted and rejected. (And let’s not forget the Cleveland Indians and Chief Wahoo!) It’s hard to take the “I know it when I see it” stance with disparagement, when so much clearly depends on which PTO examiner is seeing it, where they’re seeing it, and when.
So what if a non-Asian band wanted to register the name “The Slants”? In that context, wouldn’t it be the same as being called “The Slopes” or “The Angles”? Is the term only disparaging when used by Asians? And if so, who is the disparagement clause really protecting? I’ll be eagerly awaiting SCOTUS’s answers, and I think the NFL will be on pins and needles too.