US Court of Appeals rules Patent & Trademark Office cannot bar "offensive" trademarks

[shira]

Basically, the issue in dispute is whether the Patent and Trademark Office can bar the trademarking of words or phrases it deems offensive, racist, and or disparaging to the group referenced by the mark. A very publicized example is the PTO's cancellation of the registration of "REDSKINS" for the D.C. NFL team that goes by that name.

The court ruled 9 to 3 that barring trademarks on that basis is a violation of the first amendment. As UCLA law professor puts it in his article on this decision.

My view, which is very close to the majority’s, is that the disparaging mark exclusion is a viewpoint-based denial of protection for private speakers’ speech. Even if the program is viewed as a subsidy, such viewpoint-based exclusions are unconstitutional (except when the government itself is the speaker, and that’s not so here). And the exclusion therefore violates the First Amendment.

This denial is viewpoint-based: The government instituted the exclusion because of “disapproval of the message conveyed” by the marks. “Underscoring its hostility to these messages, the government repeatedly asserts in its briefing before this court that it ought to be able to prevent the registration of ‘the most vile racial epithets and images,’ and ‘to dissociate itself from speech it finds odious.’”

And “the disparagement provision at issue is viewpoint discriminatory on its face. The PTO rejects marks under § 2(a) when it finds the marks refer to a group in a negative way, but it permits the registration of marks that refer to a group in a positive, non-disparaging manner” (e.g., “CELEBRASIANS, ASIAN EFFICIENCY, … NAACP, THINK ISLAM, NEW MUSLIM COOL, MORMON SAVINGS, JEWISHSTAR, and PROUD 2 B CATHOLIC&#8221. “Speech that is offensive or hostile to a particular group conveys a distinct viewpoint from speech that carries a positive message about the group. STOP THE ISLAMISATION OF AMERICA and THINK ISLAM express two different viewpoints. Under § 2(a), one of these viewpoints garners the benefits of registration, and one does not.”

To me, that last point seems like a slam dunk. I mean, the government can essentially favor "nice words" over "not nice words?" WTF?

Volokh's article is long, but I don't see how anyone committed to free speech would object to the Appeals Courts' ruling. Now it's almost certainly on to the Supreme Court.

 

[mrjminer]

Definitely needed to change. I knew they banned profanity, but I didn't know the 'ban anything offensive to anyone, but allow all other positive things pass regardless of what they are' rule until the Redskins thing. Let's hope the SC can get it right if it needlessly ends up going up the food chain to confirm what is obvious