U.S. Supreme Court unanimously rules in favor of trademark protection for offensive terms

Originally published at: http://boingboing.net/2017/06/19/u-s-supreme-court-unanimously.html


Policy-wise, I agree with this (the government should not be in the business of allocating benefits on the basis of viewpoint, and the test is vague so should be stricken on those grounds alone.) Nonetheless it’s a bit odd to describe this as mandated by the first amendment and that it would be a speech ban. All trademarks let you do is suppress others’ speech. They can call themselves The Slants all they want without a trademark. What they can’t do without one is prevent others from using the term The Slants – i.e. preventing speech using the force of the government.



What implications would this have for the “Redskins” trademark?


The Redskins’ trademark was denied registration under the same section of the Lanham Act that was held unconstitutional today.


This should be interesting. Almost feels like

SCOTUS 1: “anyone know whats in this box labeled ‘Pandora’?”

SCOTUS 2: “dunno, open it up and check”


While here I am sitting thinking: what’s offensive about a “slant”?

I don’t get out much.


Above links to the Racial Slur Database. A veritable monument to the banality and creativity of one of the unpleasant parts of human nature.


Not the first either.

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wasn’t super into the song, but the video was a damned genius idea for a low-budget music video.

Prior art:

Not mentioned in the wiki article but the use of Yellow here too for the same reason. Fun fact, “yellow” isn’t considered a slur here even by people old enough to remember the GHQ occupation times even though they are aware that white people thought it could be a slur.


Which song are you referring to?

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Yeah meh song but glad to see someone finally used my idea of putting a camcorder on the kaiten sushi conveyer belt.

Didn’t understand why that woman was wearing an anpanman mask though.

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I see the legal resoning behind this decision, but if it helps the Washington Redskins I don’t feel happy about it.


You didn’t listen to the interview did you?

This is why this seems like a dumb test case to me. Slant might be an offensive term, but it’s also clearly a regular-old inoffensive term. I don’t think the name should have been denied any trademark protection in the first place.

Also, I never knew band names could receive trademark protection.

You just described like 90% of ethnic slurs.


These guys could have made a credible argument that their name wasn’t an offensive term for the ethnic group to which they belonged.

The owners of the Washington NFL team could say the team is actually named after potatoes, but I don’t think that would fly.

Actually, I’m trying to think of other ethnic or racial slurs that have inoffensive meanings, and besides these two, I’m coming up short. No, I’m not inviting you to show me a list, but the ones I’m thinking of mean only one thing.

The existence of trademarks is, indeed, very much not a first amendment matter(and would be hard to justify on those grounds); but there’s a much stronger argument in the “If trademarks are going to be a thing; a ‘no trademarks on speech we dislike’ rule is clearly a speech restriction” vein.

There are a great many things that the state has no first amendment reason to provide; but where it can create an obvious first amendment issue by providing or denying based on a speech test; since once you decide to provide something, denying it on speech grounds is a de-facto punishment for speech.