Photo Credit: britannica.com
This year (2018), the Supreme Court of the United States (SCOTUS) unanimously ruled that “The Disparagement Clause” within the Lanham Act of trademark law violates the First Amendment of the U.S. Constitution. The ruling came about after “The Slants,” an Asian-American rock band from Oregon, were able to reclaim/reappropriate, and thereby register for federal trademark, an offensive term, i.e., slant. (See our blog on The Slants here.) In its ruling, SCOTUS made it clear that “intent” is no longer of concern when an applicant is attempting to register a trademark.
Before “The Slants” brought their case before SCOTUS, there were countless trademark denials for vulgarity, such as the National Football League team the “Washington Redskins” (See our blog post on the topic here). But there were also some trademarks that were approved such as a health education service called “Little Indian Giver” and an apparel store called “Dago Swagg.”
In the SCOTUS opinion, Justice Alito stated, “Speech may not be banned for merely being viewed as offensive to others.”
Some people have voiced their concerns that by granting these types of trademark names it will open the floodgates for those who intend to use those names to express their hatred, racism, and discrimination towards others.
Where do you stand on the use of offensive terms in trademark names?