When Simon Tam, the Asian-American singer for The Slants, tried to register a trademark for his band’s name, it was refused due to it containing an offensive term. Tam chose the name in an effort to reclaim the slur. He decided to file a lawsuit in 2015 and won in the United States Court of Appeals. Now the Supreme Court has affirmed that ruling, negating the provision in the Lanham Act.
Justice Samuel Alito, who wrote the opinion, said of the provision:
“It offends a bedrock First Amendment principle. Speech may not be banned on the grounds that it expresses ideas that offend.”
This decision could be bigger than it seems at first, as it may apply to the NFL’s Washington Redskins, who had their trademarks canceled for being disparaging to Native Americans. It will also allow for the use of more offensive or scandalous titles now that companies know they will be able to get trademark protection.
Alito also noted the “vagueness of the disparagement test and the huge volume of applications has produced a haphazard record of enforcement.” This has lead to an inconsistency where a group like N.W.A. could trademark “Niggaz Wit Attitudes”, but Damon Wayans was denied a trademark for his “Nigga” clothing line.
All eight of the justices who heard the case agreed with the ruling. Justice Neil Gorsuch was not seated at the time of the hearings. The full ruling can be read here.