Bridge Span 17-8: Trademarks on the Offensive

Being offended has become quite trendy these days. Finding some words, thoughts or ideas “offensive” has become the frequent attack by the professional demonstrator/protestor/whiner crowd to try to shut down an event or someone’s speech. Always defined in the subjective, as in, “no one can judge because it offends me and only I know what offends me,” the term is used as an attack, a weapon not a shield. This effectively turns the notion of being offended on its head. And for far too long too many have played along, until now.

Last month the Supreme Court issued its decision in Martal v. Tam. The court made clear that free speech is to be protected even when that speech may be judged by some as offensive. The case focused on the Lantham Act. This Act, in part, prohibited a trademark registration that, “Consists of or comprises immoral deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Specifically, the court ruled in favor of Simon Tam, a member of the “Slants,” (a rock band made up of Asian-Americans). The band wanted to register its name but the Patent and Trademark Office (PTO) refused to register it. The Office relied on its routine practice grounded in the Lantham Act of refusing to register trademarks that it felt were degrading to beliefs, individuals or institutions. The Supreme Court ruled that such policing by the PTO is unconstitutional, saying “It offends a bedrock First Amendment principle: Speech may not be banned on the grounds that it expresses ideas that offend.”

The underpinning of the result is simple. As was pointed out in the decision, historically trademarks have been used to identify a company, or more often, by a company to identify the products or services it provides. So, trademarks are private speech and often commercial speech, and that does not change simply because the trademark gets registered. Similarly, a publication does not become government speech simply because it finds itself in the Library of Congress. And if the speech has been and remains private then the government has no business in approving it.

Of course this makes sense. Trademarks are registered as a process of individuals taking an extra measure to protect their expression and distinguishing their property. That is to say, trademarks are a signal of going on the offense not just playing defense. The PTO process ignored the First Amendment, placing trademarks they found odious on the defense, turning the process on its head.

The implications of the decision will be felt directly in Washington, D.C. This season Washingtonians can enjoy football that is rooted in the fun of watching a game instead of contemplating whether their beloved Washington Redskins would have to change their mascot from a native-American chieftain to a potato. Most importantly though, the implications reach beyond the beltway, the same line of reasoning that led the Supreme Court to rightfully protect the freedom of speech also protects the 45 year old native-American cause to protest against the Washington football team.

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