On Wednesday, the Supreme Court heard oral arguments in the case of Lee v. Tam, a lawsuit stemming from the U.S. Patent and Trademark Office’s decision to deny an Asian-American rock band’s request to register its name, the Slants. The name may be disparaging, USPTO said, and would therefore violate the Lanham Act of 1946. Band founder Simon Tam argued to the contrary. He’s reclaiming the name for Asian-Americans, he said.
The case has received far more attention for the Slants than a band billing itself as “Chinatown Dance Rock” would ever expect and that’s because of its implications for the Washington Redskins. In 2014, the NFL team’s trademark was revoked under the Lanham Act. At the time, USPTO said the team’s name is “disparaging to Native Americans,” making it against federal law. Should the court rule in favor of the Slants, the Redskins would keep their trademark. If the decision swings the other way, the team would lose — meaning that while they could retain their name, it would be more vulnerable to copycats.
The team, unsurprisingly, disagrees. Owner Daniel Snyder has argued that the name celebrates, rather than denigrates Native Americans, and in an amicus brief filed with the court, the team made the same argument the band is putting forward: The anti-disparagement clause of the Lanham Act runs afoul of the First Amendment.
According to several reports from the Supreme Court yesterday, justices appeared to side with the Slants. Justice Elena Kagan, for one, argued that allowing positive speech in trademarks and banning negative is a “fairly classic case of viewpoint discrimination,” which is unconstitutional. Justice Ruth Bader Ginsburg raised the issue of intent and asked, “Does it not count at all that everyone knows that the Slants [are] using this term not at all to disparage, but simply to describe?”
Deputy solicitor general Malcolm Stewart argued that the Slants can call themselves whatever they want, but the government doesn’t have to endorse it by granting a trademark. Justices pointed out that copyright law has no such restrictions and bristled at the law’s uneven application. Referring to lists of phrases that have been granted and rejected for trademarks, Justice Ginsburg noted that the word heeb appeared on both sides.
But the justices weren’t fully onboard with the anything-goes argument made by the band’s lawyer either. “You want us to say that trademark law is just like a public park — the public park, a public forum, the classic example of where you can say anything you want?” Justice Anthony Kennedy asked. The Slant’s lawyer said yes.
Justice Sonia Sotomayor pointed out that some restrictions are necessary. She asked the Slant’s lawyer if someone trademarked the phrase “Trump is a thief” and it was later ruled libelous, would the trademark still be valid? He said yes. “That makes no sense,” she shot back.
In the end, it appeared as if the justices were cold to the idea that the trademark office should be deciding what is and is not disparaging. But they also did not believe that the office should rubber-stamp every phrase put in front of it. A final ruling on the case will arrive in June, but those watching closely Wednesday seem to think that court will side with the Slants, and by extension, the Redskins.