The Slants win, Ban on Disparaging Trademarks and Washington Redskins Ruling Now in Doubt

Los Angeles – An Asian rock band from Portland wanted to trademark the name of their group “The Slants,” hoping to turn the racial slur into a phrase of empowerment. Instead, they got a lengthy legal battle eventually resulting in a significant change to trademark law, which may impact the Washington Redskins’ trademark case.

The Slants and Redskins cases involve an aspect of the Lanham Act, a 1946 trademark law. Section 2(a) prohibits the registration of trademarks that contain “matter which may disparage …persons…institutions, beliefs, or national symbols.” The section provides the U.S. Patent and Trademark Office the power to refuse trademark registration if the word/phrase is deemed offensive, which occurred when the rock band attempted to trademark “The Slants.”

The Slants case went to the United States Court of Appeals for the Federal Circuit. The appeals court recently ruled that Section 2(a) is unconstitutional and held that the government banning offensive trademarks is a First Amendment violation.

The judges’ majority wrote that “words-even a single word-can be powerful. Mr. Simon Tam named his band The Slants to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.”

With the section of the Lanham Act struck down, “The Slants” can now register their band name. But the impact of the court case goes beyond the rock group. The National Football League team the Washington Redskins is in its own trademark battle, which may be impacted by the court’s ruling in “The Slants” case.

In the Redskins case, a federal judge ordered the cancellation of the team’s trademark in July. The judge followed the Lanham Act’s section 2(a) that prohibits trademark protection for offensive names. Given that section has now been held unconstitutional, the Redskins may be able to keep its federal trademark registrations after all.

The team is also suing a group of Native Americans who are fighting its trademark registrations. The case will come before the U.S. Court of Appeals for the 4th Circuit in Richmond.