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Disparagement Reframed: Scotus Paves the way for Registration of Controversial Trademarks

June 21, 2017 Blogs

On Monday, the U.S. supreme court overturned long-established trademark practice with its opinion in Matal v. Tam. The court held that a federal trademark statute prohibiting registration of potentially disparaging trademarks actually violates the first amendment’s free speech clause.

The case was initiated by a front man for “the slants”—a Portland, Oregon rock band—after The United States Patent and Trademark Office (USPTO) refused to register the slants’ trademark application on the basis that it was racially disparaging.

Interestingly, the slants’ members are of Chinese descent and embraced the controversial name, in part, with the intent to reframe it through their success. “The notion of having slanted eyes was always considered a negative thing,” the slants’ front man Simon Tam says. “Kids would pull their eyes back in a slant-eyed gesture to make fun of us… I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.”

The ruling could have wide-ranging effects on former and current trademark disputes—like the Washington redskins’ mark that was canceled by the USPTO as offensive to some Native Americans. It also opens the federal trademark registration door to an entirely new category of controversial brands and marks.

Perhaps most importantly, these guys are not bad, a little Depeche Mode’y. Check out “capture me burning” or “Kokoro (i fall to pieces).”\