The Supreme Court struggled Wednesday with whether racial epithets should be eligible for trademarks under the First Amendment.
Justice Sonia Sotomayor said no one is stopping the Asian-American rock band at the center of the case from calling themselves “The Slants,” even though the Patent and Trademark Office (PTO) denied their request to trademark the name.
“You can still use your name,” she said.
Because the Lanham Act bars the PTO from registering scandalous, immoral or disparaging marks, it refused the band’s trademark request in 2011. The term “slants,” it said, is offensive to Asian people.
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The band, however, argues that they’re trying to reclaim and redefine a term that’s been used to insult and stigmatize Asians.
Justice Anthony Kennedy asked the band’s attorney, John Connell, if he’d argue that the name would be protected under free speech if the band members weren’t Asian, used make-up to portray slanted eyes and made fun of Asians.
Connell said even in that case, the trademark couldn’t be denied.
Still, the justices didn’t seem convinced that they should side with the government and reverse the lower court ruling siding with The Slants
Justice Elena Kagan grappled with why the law only applies to disparaging terms.
“So, for example, let’s say that I wanted a mark that expressed the idea that all politicians are corrupt, or just that Democrats are corrupt,” she said. “Either way, it doesn’t matter. I couldn’t get that mark, even though I could get a mark saying that all politicians are virtuous, or that all Democrats are virtuous.”
The case has gotten national attention, in part because the Washington Redskins asked the court to hear its case challenging the cancellation of its trademark as well.
The court denied that request likely due to the fact that the NFL team’s appeal has not yet been heard by a federal appeals court in Richmond, Va.
The PTO canceled the “Redskins” trademark in 2014, claiming the team name and logo are disparaging to Native Americans.