Supreme Court Says You Can Trademark Racial Slurs
By Rachel Leigh, Student Writer for Volume 21
The Patent and Trademark Office (PTO) previously denied trademark applications that would disparage others. In the recent case of Matal v. Tam, the U.S. Supreme Court declared this practice violates the Free Speech Clause of the First Amendment.1 The Court reiterated its longstanding position that speech cannot be prohibited just because it is offensive.2 In fact, the Court claimed protecting the “freedom to express the thought that we hate” to be the “proudest boast of our free speech jurisprudence.”3 The case of Matal v. Tam was not expressing hate, though, but rather the opposite. In that case, a dance-rock band comprised of Asian-American members wanted to trademark their name, “The Slants.”4 The PTO denied the band’s trademark application, however, because “Slants” is a derogatory term for persons of Asian descent.5 The band’s goal was not to use the term in a derogatory sense, but instead to “take ownership” of stereotypes.6
After the Supreme Court decision, people are also trying to trademark racial slurs with a positive purpose. Called the “race against the racists,” some are applying to trademark derogatory terms to prevent others from using the words in a negative way.7 It is also a chance to “reclaim” the terms and use them in a non-disparaging way.8 Those applying for trademarks will need to use the trademarked term in order to succeed in fighting off infringers. This may mean that we will be seeing more perceived racial slurs on products than in the past, but with a positive message behind it.
You may, however, also be seeing those disparaging terms and images without positive motives that were recently denied trademark application from the PTO for that very reason. One popular case in the news is that of the Washington Redskins football team. The Washington Redskins have been involved in an ongoing legal battle regarding their trademark after the PTO declared “redskins” to be a term that disparaged Native Americans.9 It is clear from this opinion that the Washington Redskins will be able to trademark and continue to use this derogatory term.
No matter the intent behind the trademark, the Court’s decision in Matal v. Tam will most certainly mean there will be products on the market with offensive terms. This outcome may bother some, but it is also reassuring that there are people out there determined to “protect” these racial slurs and turn this into an opportunity to promote inclusivity.
1 Matal v. Tam, 137 S.Ct. 1744, 1765 (2017)
2 Id. at 1763
3 Id. at 1764
4 Id. at 1751
6 Id. at 1754
7 See After Supreme Court Decision, People Race To Trademark Racially Offensive Words, NPR, (July 21, 2017), http://www.npr.org/2017/07/21/538608404/after-supreme-court-decision-peo....
9 Adam Liptak, Justices Strike Down Law Banning Disparaging Trademarks, N.Y. Times, (June 19, 2017), https://www.nytimes.com/2017/06/19/us/politics/supreme-court-trademarks-....