On June 19, 2017, the Supreme Court ruled that the 70-year-old federal ban on offensive trademarks is unconstitutional.
The “disparagement clause” of the Lanham Act prohibits registration of trademarks “which may disparage . . . or bring . . . into contempt or disrepute” any “persons, living or dead, institutions, beliefs, or national symbols.” Simon Tam sought federal trademark registration for THE SLANTS, the name of his Portland-based Asian-American band. The name, according to Tam, was an attempt to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity. Citing the disparagement clause, the Examining Attorney refused registration on the basis that “there is . . . a substantial composite of persons who find the term in the applied-for mark offensive.” Tam appealed, and the Federal Circuit reversed, finding the disparagement clause unconstitutional under the First Amendment. The government appealed, and the Supreme Court has now affirmed. Continue reading