Court of App for Fed Circuit Upholds offensive TMs and the First Amendment

from the wall street journal:

The U.S. Court of Appeals for the Federal Circuit in Washington struck down a long-standing provision in federal law and sided with Simon Tam, the frontman for the Asian-American rock band The Slants, who sought to register the band’s name. A U.S. Patent and Trademark Office examiner had denied it, saying the phrase was likely disparaging to people of Asian descent.

Tuesday’s decision endorsed a robust view of the First Amendment as it struck down a nearly 70-year-old provision in the Lanham Act that barred the registration of disparaging trademarks. The court, however, also acknowledged its ruling opened the door for the registration of trademarks that contain ethnic slurs and “offend vulnerable communities.”

“Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others,” Judge Kimberly Moore wrote for the court’s majority. She said the Constitution protects free speech “even when speech inflicts great pain.”

Tuesday’s case wasn’t unanimous. One dissenting judge, Alan Lourie, disputed the idea that there were bedrock First Amendment principles at stake. He likened the case to the recent Supreme Court battle over whether Texas could reject a license plate featuring the Confederate battle flag. In the case before the high court, justices concluded that license plate designs are “government speech” and fall outside of First Amendment protection.

Tuesday’s decision overturned past legal precedent and would “further the degradation of civil discourse,” wrote Judge Lourie.

The trademark office has rejected a number of other trademarks on the basis that they were disparaging. Among the more controversial decisions, it objected to an applicant who wanted to register “Khoran” as a trademark for wine. And it turned down an attempt by Heeb magazine, a publication marketed to young urban Jews, to register “Heeb.”

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