The Court of Appeals for the Federal Circuit has ruled that the name of an Asian-American band — The Slants — is private speech and therefore protected by the First Amendment. The government, the court writes, has no business trying to regulate it by denying the band a trademark.
At issue in the case was Section 2(a) of the Lanham Act, which allows the U.S. Patent and Trademark Office (PTO) to deny or cancel a trademark if it is “disparaging” of persons, institutions or national symbols.
In a 10-2 decision, the court decided parts of that section were unconstitutional. Conferring a trademark, the court argues, does not make the band’s name government speech:
The PTO’s processing of trademark registrations no more transforms private speech into government speech than when the government issues permits for street parades, copyright registration certificates, or, for that matter, grants medical, hunting, fishing, or drivers licenses, or records property titles, birth certificates, or articles of incorporation.
Very interesting result. What are the implications for the REDSKINS trademark?
The Court’s opinion may be read here.