The Supreme Court today ruled that trademarks can be registered at the US Trademark Office even if t

The Supreme Court today ruled that trademarks can be registered at the US Trademark Office even if they’re disparaging, because the disparagement bar is facially unconstitutional under the First Amendment. The case involved an Asian-American band called The Slants, who were refused registration because the Trademark Office’s Examining Attorney said the mark “The Slants” was disparaging of Asians and Asian-Americans. The ruling was unanimous, although not all the Justices joined in the same opinion, and Gorsuch was completely uninvolved in the hearing and decision. Yes, this means that hurtful and hateful terms can be registered as trademarks, but it also means that a trademark registration cannot be considered as government speech, or governmental endorsement of the mark - all a registration means is that the applicant has jumped through a few specific hoops involving non-descriptiveness, non-obscenity and lack of likelihood of confusion. Some press has said that the government banned the use of disparaging marks - it didn’t. Trademark rights in the US are developed by use, not registration, and even an unregistered mark can have rights - and fame - across the country. What impact does the ruling have for fandom? The ruling itself could impact website and app creators who want to reclaim derogatory terms. What’s almost more interesting is that some of the insights and dicta can be read as very supportive of fandom projects that have nothing to do with disparaging content. I talked a bit about these issues on Twitter earlier today. The particular bit of the case that impacts many fandom projects is quite positive for fandomers:  The Court wrote that the Government asserted that “the central purposes of trademarks are commercial and that federal law regulates trademarks to promote fair and orderly interstate commerce.”And the Court did not think that was accurate or true, and noted: Tam and his amici, on the other hand, contend that many, if not all, trademarks have an expressive component. In other words, these trademarks do not simply identify the source of a product or service but go on to say something more, either about the product or service or some broader issue. The trademark in this case illustrates this point. The name “The Slants” not only identifies the band but expresses a view about social issues.  This is actually great dicta for those who create content noncommercially and/or use TMs to identify a service & say something more. If someone tells you that your website is commercial because you have a little TM next to your unique name, or because you have a Zazzle store, or your own domain name, you may be in a position to quote this case and say that a trademark can do more than identify the source of a product or service. The mere existence of a trademark does not mean that it is identifying a commercial entity, product or service. What will the longtime impact of the Tam case be? It’s hard to determine what the impact will be on topics like dilution, or issues involving commerciality. I wish the Court had made it clear that the government cannot ban disparaging speech, but private entities can - and this might be an issue that comes up again as “the commons” of discussion moves online to privately-hosted forums and comment pages. (And if anyone from BPAL is reading this, we trademark lawyers would like scents called Happy-Talk Clause, Delphic Advice and Constitutional Vice.) -- source link

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