The Slanted Face of Trademark Law

On June 19, 2017, the U.S. Supreme Court made a momentous ruling regarding the limits of the Lanham Act, the primary law governing trademark law in the United States. As enacted, the Lanham Act bars anybody with a potentially disparaging or scandalous mark from obtaining federal trademark protection. Enter the Asian rock group known as “The Slants.” The term “slant” is traditionally deemed a racial slur for any Asian person, yet the rock group chose to name themselves after the term in order to “reclaim the term and drain it of its denigrating force as a derogatory term for Asian persons” according to the bands lead singer, Simon Tam. When the group attempted to register their mark with the USPTO, they were rejected on the grounds that their mark could potentially offend the Asian-American population. Going all the way to the U.S. Supreme Court, Tam won his case with a unanimous 8-0 decision. The Supreme Court ruled that Tam’s mark was protected under the First Amendment and that the Lanham Act’s disparagement clause was unconstitutional. The basis of this decision came for the idea that a trademark is neither government speech nor government-subsidized speech but rather private speech. In prohibiting certain trademarks that might offend people, the Supreme Court ruled that the Lanham Act was discriminating against speech protected under the First Amendment, rendering it unconstitutional. This new development has several major implications. For one, a trademark is now explicitly defined to be private speech and separate from the government despite the USPTO registering and issuing the trademark registrations. Most importantly, under the Supreme Court’s new ruling, almost anything is capable of receiving trademark protection so long as it meets the USPTO’s requirements of being unique and indicative of the origin of a product or service-with some restrictions on name and geography. This new license to trademark opens the door to a brave new world. With the ability to trademark offensive content, it’s not unforeseeable that people will seek to abuse this new interpretation of the Lanham Act towards negative ends, possibly trademarking offensive icons or phrases for the express purpose of shaming groups of people or promoting violence. That answer will likely come in the following months when the USPTO inevitably sees a spike in the number of applications for trademark as people who formerly could not protect their marks rush to get them registered.