The Supreme Court ruled this morning that the government cannot deny full trademark protection to allegedly racially offensive trademarks. The opinions are here.
The case involved an Asian-American band called “The Slants.” It sought federal registration of that mark. The Patent and Trademark Office denied the application under a Lanham Act provision prohibiting trademarks that may “disparage. . .or bring. . .into contemp[t] or disrepute” any “persons, living or dead.”
The Court ruled in favor of The Slants. The vote was unanimous, though the Court split 4-4 on some of the finer points. Eugene Volokh summarizes the core points on which all eight Justices agreed (Justice Gorsuch did not participate):
1. By denying registration to trademarks that allegedly disparage certain kinds of groups, the federal trademark law discriminates based on viewpoint.
2. While the government may discriminate based on viewpoint when it comes to speech that is treated as the government’s own speech, trademarks are private speech (albeit protected by the government against certain forms of infringement) and not government speech.
3. Even if these trademarks are viewed as “commercial speech” (basically, commercial advertising), which is subject to somewhat more restrictions than other speech — and the court stresses that they might not be — such speech still can’t be restricted because of its alleged offensiveness. Both of the main opinions are solid when it comes to protecting “hate speech.” Justice Alito wrote: