I had never heard of The Slants until the USPTO denied a trademark application seeking registration of their band name. Applications can be denied if the USPTO deems a mark to be disparaging.
Would you say “no” to these dudes?
But, that is exactly what the USPTO did. In their opinion, the word “Slants” disparaged a substantial composite (not majority) of Asians in the context of contemporary attitudes.
And, that subjective, moving-target determination was made by a single trademark examining attorney.
On appeal, the Federal Circuit didn’t even address contemporary attitudes, or if the name offended anyone. Instead, it leapfrogged and ruled that Section 2(a) of the Lanham Act (disparagement) was facially unconstitutional because it violates the 1st Amendment.
This is how it works: The Slants chose their name to draw attention to and embrace their Asian heritage. Their choice was at least partially political speech. The examining attorney made a decision that the content of that speech was disparaging and offended people.
But, laws that target speech based on its content are—as they should be—presumptively invalid under the 1st Amendment. After all, is it not a bedrock of American law that one can speak even if people are offended? What’s America if we cannot freely call each other nimrods and wingnuts?
Now on to football.
The Washington Redskins trademark was cancelled because it was deemed by contemporary attitudes to be disparaging, just like The Slants. And, it was cancelled after decades of use and mounds of cash spent promoting, maintaining, and protecting the mark. However, the Redskins case is in a different court that is not bound by the Slants decision.
However, the USPTO may elect to punt the Redskins case anyways because its legal brief relies mostly on the 1981 McGinley case that held Section 2(a) was constitutional. But, the McGinley case originated in the Federal Circuit and was expressly overruled in the Slants decision. So, the USPTO is relying on a case that is now bad law!
I am sure both sides are huddling to see what’s next in their playbooks. But, many feel that the Slants decision will result in a Redskins end run and the cancellation will be reversed.
Anybody for crispy pig skins?
Photo courtesy of Toonie.