An appeal to the United States Supreme Court is the latest move in an ongoing battle between the Asian-American band “The Slants” and the USPTO over whether the band’s name is disparaging and should be granted trademark registration or not. After a panel of Federal Appeals Court judges reversed the Trademark Office’s decision rejecting the mark, the Office has now appealed to the highest court in the land in an effort to allow it to retain discretion over whether some marks are too offensive for registration. Time will now tell whether the Supreme Court will accept the case and continue its increasingly active role in intellectual property law.
This protracted battle between the band and the Trademark Office goes back multiple years now. The Slants began using the name in 2006 and have been fighting with the Trademark Office since 2010 when they first filed a trademark application. The Trademark Office initially rejected the band’s application on disparaging grounds arguing that the name was offensive to those of Asian ancestry. The Slants responded claiming they chose the name to take on stereotypes and claim they have received strong support from the Asian community. The Trademark Office said this didn’t matter and even on appeal to the Trademark Trial and Appeals Board, the band’s application was rejected.
After the USPTO refused to budge on its stance, the Slants appealed the decision to the Federal Appeals Court. The 12 judge panel reversed long standing USPTO policy and trademark law, saying that denying the band its trademark registration was unconstitutional and an infringement on its right to free speech under the First Amendment. In response, the USPTO now hopes that the Supreme Court will hear the case and listen to its argument that rejecting its trademark application is not a restriction on the band’s freedom of speech. The USPTO argues the band can call itself whatever it wants, but that the government should not have to grant it “extra” rights that come along with trademark registration if the mark is offensive, scandalous, or disparaging.
If the Supreme Court hears this case, it has potential implications for another high profile trademark case. The Washington Redskins would love for the USPTO to be stripped of its power to determine what is and is not disparaging after its trademark registration was canceled in a recent ruling. Another victory for The Slants at the Supreme Court level would pave the way for the Redskins to re-obtain their trademark registration rights.
Trademark law can be complex and not everything is eligible for trademark registration. If you have questions about the trademark process or are ready to file a trademark application, please contact the trademark attorneys at Trademark Access. Let our experience protect your valuable brand.