Section 2(a) of the Lanham Act prohibiting the federal trademark registration of disparaging marks was recently held to violate the 1st Amendment freedom of speech protections by the Federal Circuit Court in “In Re Tam.” The mark refused registration is the name of an Asian-American rock band called “The Slants.” Though the band’s lead singer, Mr. Tam, says the name was chosen because of pride in their Asian heritage, the mark historically has been found to be disparaging to those of Asian descent.
The Act says that no trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.
Finding that the First Amendment protects even hurtful speech, the Court went on to state that the government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks and that it cannot refuse to register marks because it concludes that such marks will be disparaging to others. The Court further said, in finding Section 2(a) of the Lanham Act unconstitutional, the government regulation at issue amounted to viewpoint discrimination.
In striking a blow against government sanctioned political correctness, the Court seemed to recognize that the commercial marketplace merited the same speech protections that one might expect personally in publishing a blog or writing a letter to the editor. Of particular note to me was the Amicus Curiae Brief submitted by Hugh Hansen my former Trademark Professor at Fordham Law School. Professor Hansen argued that a true marketplace of ideas, as championed by Justice Oliver Wendell Holmes, no longer exists in our society due to the intolerance of opposing viewpoints on the Internet and in media outlets that only further confirms existing beliefs. So if we only read the New York Times and watch MSNBC, this is certainly food for thought next time we choose our reading and viewing material.
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William Tennant 