The ruling, written by Justice Samuel Alito, says that trademarks are private, not government speech, and that the government may not curtail even offensive expression. Courts had long ruled that it didn't violate the First Amendment because it doesn't actually bar the real-life use of the offending mark, nor does it prevent the owner from enforcing common law trademark rights.
Oregon-based rock group The Slants, whose members are all Asian-American, acknowledge that the band's name is sometimes used as an anti-Asian slur. The band's lawyers have argued that the government can not use trademark law to impose burdens on free speech to protect listeners from offense. The football team's legal challenge, now on hold in a Virginia appeals court, will likely be bolstered by the ruling in Tam, since the Redskins' lawyers could argue that any effort to permanently revoke the emblem would amount to government censorship. "The Supreme Court vindicated the Team's position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government's opinion".
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It's a victory for the band, and potentially for the Washington Redskins. whose trademark request was denied on the same grounds. The patent office argued that because federal trademarks can be enforced by government, they are effectively government-backed speech. The original trademark was rejected because the band's name was considered a disparaging term.
While the justices all agreed on the outcome, they split in their rationale. Court watchers were not surprised to see conservative voices on the court, including Clarence Thomas and Chief Justice John Roberts, side with the band.
"The Supreme Court's ruling likely means that those Washington Redskins registrations will remain on the books at the USPTO", Dorsey & Whitney partner J. Michael Keyes said in a statement. Organizer Simon Tam said the name is intended "to take on stereotypes that people have about us, like the slanted eyes, and own them".
"In the sense relevant here, that is viewpoint discrimination", Alito wrote. The team's case remains before the Fourth Circuit Court of Appeals. As always, we will continue to follow the trademark laws in examining applications. "If affixing the commercial label permits the suppression of any speech that may lead to political or social "volatility", free speech would be endangered". Whether you're a musician, a politician, or a sports team-the Washington Redskins' moniker will now be safe-it's civil society (consumers, voters, fans) who should decide whether you're being too offensive for polite company.