Trademark Fight Over Vulgar Term’s ‘Phonetic Twin’ Heads to Supreme Court; The New York Times, January 21, 2019

Adam Liptak, The New York Times; Trademark Fight Over Vulgar Term’s ‘Phonetic Twin’ Heads to Supreme Court

"The Supreme Court apparently thinks the question is more complicated, as it agreed this month to hear the government’s appeal. If nothing else, the court can use Mr. Brunetti’s case to sort out just what it meant to say in the 2017 decision, which ruled for an Asian-American dance-rock band called the Slants. (The decision also effectively allowed the Washington Redskins football team to register its trademarks.)

The justices were unanimous in ruling that the prohibition on disparaging trademarks violated the First Amendment. But they managed to split 4 to 4 in most of their reasoning, making it hard to analyze how the decision applies in the context of the ban on scandalous terms."

Free Speech at the Supreme Court; New York Times, June 19, 2017

Editorial Board, New York Times; Free Speech at the Supreme Court

"The Supreme Court reaffirmed core free-speech principles in two cases on Monday, both decided without dissent...

"The Patent and Trademark Office rejected the name under a provision in a 70-year-old federal law prohibiting the registration of trademarks that “disparage” any “persons, living or dead, institutions, beliefs, or national symbols.”

Writing for the majority, Justice Samuel Alito said the law violates a “bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” That’s the right call. The First Amendment bars the government from discriminating among speakers based on their viewpoints. In this case, the Trademark Office did that by blocking only registrations for trademarks it determined to have negative connotations. The free-speech clause doesn’t apply to the government’s own speech, but registered trademarks can’t be put in that category — otherwise the government would have to argue that it endorses each of the more than two million trademarks it has already registered.

The decision is likely to help the Washington Redskins, who lost their trademark protections in 2014 after years of complaints from Native American groups. At the time, this page supported the Trademark Office’s decision, and we still regard the Redskins name as offensive. Based on this case, however, we’ve since reconsidered our underlying position."

Julieta Chiquillo, Dallas Morning News; 

Why the Supreme Court protects offensive trademarks but not Texas plates with Confederate flag

"When Alito struck down efforts to equate the Oregon case with the one in Texas, he highlighted three points:

First, license plates have long been used by states to convey messages. Second, license plates are usually identified with the state because they are considered a form of government ID, one that is manufactured by the state and generally designed by the state. Third, Texas "maintained direct control" of the messages in its plates.

"None of these factors are present in this case," Alito wrote in The Slants opinion."

The Supreme Court gives the country some necessary guidance on free speech; Washington Post, June 19, 2017

Editorial Board, Washington Post; The Supreme Court gives the country some necessary guidance on free speech

"THE UNITED STATES is engaged just now in a freewheeling debate about — freewheeling debate. Or, to put it more precisely, about how freewheeling debate should normally be. The struggle is being waged across various battlegrounds — college campuses, social media, New York theater, even the air-conditioned offices in which federal employees decide whether to protect trademarks, such as that of Washington’s National Football League franchise.

Now comes the Supreme Court with a strong statement in favor of free speech, to include speech that many find offensive. With the support of all eight justices who participated in the case (new Justice Neil M. Gorsuch being the exception), the court struck down a 71-year-old law requiring the Patent and Trademark Office to deny registration to brands that may “disparage” people or bring them “into contemp[t] or disrepute.” The ruling means that a dance-rock band may henceforth call itself “the Slants” on the same legal basis that, say, Mick Jagger’s bunch uses “the Rolling Stones” — even though many Asian Americans find the term derogatory and demeaning...

As the court’s decision reminds us, constitutional and decent are not the same thing."

The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute; NPR, June 19, 2017

Bill Chappell, NPR; The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute

[Kip Currier: A big 8-0 U.S. Supreme Court decision for Asian American rock band The Slants today. I met The Slants at an April 27, 2017 event, hosted by Duquesne University's School of Law and Mary Pappert School of Music, discussing conflicting aspects of U.S. trademark law (specifically, the Lanham Act's provision addressing "disparaging trademarks") and the 1st Amendment and freedom of expression. Some photos I took at that event:]

"Members of the Asian-American rock band The Slants have the right to call themselves by a disparaging name, the Supreme Court says, in a ruling that could have broad impact on how the First Amendment is applied in other trademark cases."

Episode 774: Unspeakable Trademark; NPR, Planet Money, May 26, 2017

[Podcast] Jacob Goldstein, Ailsa Chang, NPR, Planet Money; 

Episode 774: Unspeakable Trademark

"Warning: This episode has explicit language, for unavoidable and soon-to-be obvious reasons...

Today on the show, a fight over a band name that turns into a fight about free speech. It goes all the way to the Supreme Court."

Asian-American Rock Band Denied Trademark For ‘Disparaging’ Name; KDKA.com, April 27, 2017

Julie Grant, KDKA.com; 

Asian-American Rock Band Denied Trademark For ‘Disparaging’ Name

"The government’s position is that the trademark registration program and trademarks generally have not historically served as vehicles for expression; they are meant to identify the source. The law is set forth in the Lanham Act which states that registration can be refused if a trademark is disparaging. Dr. Rooksby believes the provision is too arbitrary and will be invalidated by the court.

According to Rooksby, “I think Simon Tam should win the case. They’ve made a compelling argument that this provision of the trademark law is unconstitutional and this is because it’s too arbitrary. How do you apply it? What is something that’s disparaging?”

While the court weighs the arguments, the band has released an EP titled “The Band Who Must Not Be Named.” A decision is expected by the end of June."

'It's a lot bigger than the band': The Slants challenge ruling rejecting trademark for their name; Pittsburgh Post-Gazette, April 27, 2017

Paula Reed Ward, Pittsburgh Post-Gazette; 

'It's a lot bigger than the band': The Slants challenge ruling rejecting trademark for their name

[Kip Currier: Fascinating panel discussing Lee v. Tam case and broader issues of trademark law and free speech. The Slants performed after the panel. I spoke with the defendant, Simon Tam, who was a member of the panel and did a masterful job using "story" to make his points, and he insisted that the rest of the band sign the band poster I bought.]

"“I should be able to say what I want to say that my community doesn’t find offensive,” Mr. Tam said. “At the end of the day, it’s a lot bigger than the band.”

On Thursday, Mr. Tam and his bandmates — he describes their music as 80s-inspired synth pop — spoke at a panel discussion at Duquesne University before an evening performance. It’s part of a six-week tour that has hit clubs, law schools, intellectual property workshops and anime conferences.

The tour is to raise awareness of the ongoing court case, Lee v. Tam. In it, the U.S. Patent and Trademark Office appealed a decision by the U.S. Court of Appeals for the Federal Circuit, which found in Mr. Tam’s favor in December 2015.

Mr. Tam’s original trademark application, made in 2009, was rejected because it was found to violate the Lanham Act, which prohibits a trademark if it “consists of matter which may disparage persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute.”"

United States: Lee v. Tam: Disparaging Trademarks At The Supreme Court; Mondaq, 11/24/16

Mark Hannemann, Thomas R. Makin, Matthew G. Berkowitz, Patrick Colsher, Joseph Purcell and Eric Lucas, Mondaq; United States: Lee v. Tam: Disparaging Trademarks At The Supreme Court:

"On April 20, 2016, the United States Patent and Trademark Office (the "PTO") petitioned for a writ of certiorari on the following question:

Whether the disparagement provision in 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it "[c]onsists of... matter which may disparage... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute," is facially invalid under the Free Speech Clause of the First Amendment."

USPTO appeals to Supreme Court for ruling on racially tinged trademarks; Ars Technica, 4/22/16

Joe Mullin, Ars Technica; USPTO appeals to Supreme Court for ruling on racially tinged trademarks:

"In December, a court case brought by Portland-based Asian American rock band "The Slants" led to what could be a major change in US trademark law. The US Court of Appeals for the Federal Circuit overruled the US Patent and Trademark Office, which had refused to give the band a trademark, citing a law barring "disparaging" marks.

The battle isn't quite over, though. Patent Office lawyers have appealed to the Supreme Court, asking them to consider the case. If the Supreme Court takes up the case and reverses the Federal Circuit—something the high court has not hesitated to do in recent patent cases—the USPTO will retain its ability to quash disparaging trademarks.

Either way, the results of the case will have repercussions for other owners of controversial trademarks—most notably, the Washington Redskins. The football team was stripped of its trademark rights after years of litigation but is continuing its fight at the US Court of Appeals for the 4th Circuit."