#NoFilter: Supreme Court paves way for Offensive Trademarks

On June 19, 2017, the Supreme Court concluded that the disparagement clause of the Trademark Act violates the Free Speech Clause of the First Amendment.  The heart of the issue comes down to whether or not a restriction on disparaging marks is a violation of the First Amendment and frankly, the answer is yes. The Government offered explanation by way of public policy and interest. However, the Supreme Court remained firm in the idea that principal of freedom of speech means the freedom to express our ideas and opinions, even if they are negative.

In light of this ruling by the Court, applicant’s seeking Trademark registration for a particular offensive mark, no longer need to be weary of the USPTO rejecting their application for fears of violating the disparagement clause.  Additionally, a Trademark Attorney consulting with their client on selecting a particular mark for registration, need not be as restrictive in eliminating potential marks that would most likely have been rejected prior to this ruling.  The Supreme Court has firmly supported a trademark owner’s right to register a mark, no matter how offensive, as long as it meets the minimum requirements of filing under the Trademark Act.  In turn, a mark may no longer be rejected merely because it expresses a negative viewpoint.

For some, this case comes as a huge win in that the ruling eliminates a potentially large obstacle in the trademark registration process. Most notably, the Washington Redskins, may find themselves benefiting from this ruling immensely as they are currently appealing the cancellation of their marks based on the disparagement clause.  The team has been fighting to keep their registrations alive for several years now, arguing against a finding that their long used trademarks are a violation of the disparagement clause.  Thus, with the current ruling, this should pave the way for their registrations to remain in force.

For others, this ruling comes as a devastating loss. The decision grants applicants the right to receive protection and to use in commerce marks that are offensive, hateful and derogatory. For those on the receiving end of this type of language, seeing these types of marks used in public is a disturbing thought, let alone allowing a Trademark owner to enforce the rights granted to them with a Federal Trademark Registration.

In conclusion, an excerpt from Justice Alito’s opinion as noted below demonstrates the balancing act required in addressing free speech concerns:

“But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”