Justices say government can't refuse disparaging trademarks

In a win for free speech, the U.S. Supreme Court ruled on Monday that trademarks can not be denied simply because a name is deemed offensive. The team is now appealing a federal judge's decision to uphold the U.S. Patent and Trademark Office's cancellation of their trademark, because it is a racial slur and disparages Native Americans (and, per this website's house style, is not fit for print).

The ruling Monday, June 19, 2017, is a win for an Asian-American rock band called the Slants and it gives a major boost to the Washington Redskins in their separate legal fight over the team name. He unsuccessfully attempted to register the name with U.S. Patent and Trademark Office because the agency said it disparages Asians. After trademark examiners refused Tam's application, Tam brought a lawsuit, and in December 2015, he prevailed at the United States Court of Appeals for the Federal Circuit.

Justice Elena Kagan asked whether the First Amendment rule that prohibits the government from discriminating against disfavored views applies to the trademark's ban on "bad" trademarks.

In their decision, the U.S. Supreme Court affirmed the lower court's opinion.

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In a 39-page opinion that came with several concurrences, Justice Samuel Alito wrote that the rule - the so-called disparagement clause of Lanham Act's Section 2a - amounted to discrimination based on unpopular speech. "This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints", the court said.

When the government grants a trademark to a business owner, the owner gains the exclusive legal right to use the name on products and merchandise such as T-shirts.

A federal court initially sided with The Slants, and today the Supreme Court did so too, unanimously, in fact. But some say the government approval of trademarks confers more than a commercial benefit and suggests tacit government approval of the slurs.

Snyder has repeatedly insisted he will not change the team's name despite continuing objections by Native Americans.

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Band says decision means "marginalized communities" can determine for themselves what's best, even if it involves words thought racially insensitive. New Justice Neil Gorsuch didn't take part in the case because it was argued before he joined the court. Alito also said trademarks are not immune from First Amendment protection as part of a government program or subsidy.

Pro Football, Inc. v. Blackhorse was the case in which the Washington NFL team challenged a PTO decision that stripped the team of all trademarks to its name after the PTO decreed "redskins" a slur and thus unprotectable under the Lanham Act. Snyder issued a quick response to the decision on Monday: "I am THRILLED".

Redskins attorney Lisa Blatt said the team was "thrilled" with the court's decision.

In a filing Monday, the Justice Department defended the Trademark Trial and Appeal Board's decision past year to strip the team of protections.

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