The U.S. Supreme Court ruled Monday in favor of an Asian-American band from Portland, The Slants, in a trademark dispute with the federal Patent and Trademark Office. The ruling ends an eight-year legal battle and means the band's founder, Samuel Tam, can register the name, which the government contends is an ethnic slur, as a trademark.
The U.S. Patent and Trademark Office fought the band’s application, citing a 70-year-old statute — section 2A of the Lanham Act — that has guided policy on potentially-offensive business and product names. The government argued the band still has legal avenues for defending its brand without the trademark.
But in his decision, Justice Samuel Alito ruled against the PTO's interpretation of the statute, writing, "The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech."
The ruling was unanimous. Court watchers were not surprised to see conservative voices on the court, including Clarence Thomas and Chief Justice John Roberts, side with the band.
But a block of justices, including Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor also agreed to some parts of the decision, finding, in the words of the court, “To permit viewpoint discrimination in this context is to permit Government censorship.”
Ronald Coleman is a partner at Archer and Greiner, the law firm that represented the band before the Supreme Court. Coleman and his team argued anything less than full trademark protection would shortchange the band’s rights.
“If I said, no one is allowed to burglarize homes. Every home has the law behind it. But we’re going to allow certain people to lock the door. And … other people whose point of views we don’t like … we’re not going to give them door-locking privileges. That’s a burden. And that’s what’s prohibited by the Constitution,” Coleman said.
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