In a recent case shooting down the trademark disparagement clause, U.S. Supreme Court has held that the rock band “The Slants” have the right to a trademark on their name. The opinion in the case, Matal v. Tam, was issued on June 19, 2017. The case is important because it concerns the application of the “disparagement clause” of the Lanham Act.
The Slants is a rock band originating in Portland, Oregon, that that has Asian-American members. They chose the name out of the desire to reclaim the name “slants”, and associate good connotations with the name. The case arose because the U.S. Patent and Trademark Office rejected the application for a trademark on the name because of the “disparagement clause” which prohibits the registration of any trademark that may “disparage…or bring…into contempt or disrepute” any “persons, living or dead.” Because the term “slants” has been used as a derogatory term to refer to people of Asian descent, the application was rejected.
The Supreme Court held that the disparagement clause violates the Free Speech Clause of the First Amendment. The Slants may trademark their name. The case is grounded in the principle that speech cannot be banned merely because it is offensive. Justice Gorsuch did not participate in the case. None of the justices dissented from the decision, although two additional concurring opinions were also filed.