A United States Appeals court will decide whether offensive names can obtain trademark protection. On Monday, the U.S. Court of Appeals for the Federal Circuit said the issue of whether the First Amendment right to free speech trumps a legislative ban on disparaging trademarks.
The United States Patent and Trademark Office (USPTO) and an appellate court in Washington have both denied a rock band's trademark application because it is deragatory and offensive. The Slants have been attempting to trademark their name and have been denied because the term is sometimes used in a deragatory way towards Asian people.
Most recently, the USPTO has canceled the trademark for the Washington Redskins NFL football team for the same reasons as the denial of the Slants' trademark application. The power of the USPTO to decide the morality of trademark registrations is sparking debate within the field of trademark law. The USPTO must determine if a trademark "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." 15 U.S.C. § 1052.
Attorney Ron Coleman of Archer & Greiner in Hackensack, New Jersey stated, "[t]he problem is that when it comes to this sort of thing, you can't be a little bit pregnant with the First Amendment. The idea that the PTO will be the last bastion of moral diction is a little bit preposterous. They're being asked to insert themselves into moral and political battles."
A court decision in favor of the Slants could mark a pivotal expansion of "disparaging" trademarks. The result of this decision may also impact the Washington Redskins litigation, which is currently pending. In due time, the constitutionality of the USPTO's authority to render a decision on the content and applicability of these marks will be decided and debated.