I had never heard of The Slants until the USPTOdenied their trademarkapplication seeking registration oftheir band name. Applications can be denied if the USPTO deems amark to be disparaging.
I wouldnt want to be the personto say notothese dudes:
But, that is exactly what the USPTOdid. In theiropinion, theword Slants disparaged a substantial composite (not majority) of Asians in the context of contemporary attitudes.
And, that subjective, moving-target determination was made by a singletrademark examining attorney.
On appeal, the Federal Circuit didnt even address contemporary attitudes or ifthe name offended anyone. Instead, it leapfroggedandruledthat Section 2(a) of the Lanham Act(disparagement)was facially unconstitutionalbecause it violates the 1st Amendment.
This is how this works: The Slants chose their name purposefully to draw attention to and embrace Asian culture. Their choice was at least partially political speech. The examining attorney (relying on Section 2(a)) made a decision that thecontent of that speech offended people.
Laws that target speech based on its content areas they should bepresumptively invalid under the 1st Amendment.After all, is that not a bedrock of American lawthe right to speak even if people are offended? Whats America if we cannot freely call each other nimrods and wingnuts?
Now onto football.
The Washington Redskins trademark was cancelledbecauseit was deemedby contemporaryattitudes to be disparaging, just like The Slants. And, it was cancelled after decades of use and mounds of cash spent promoting, maintaining, and protecting the mark.However,the Redskins case is in another Circuit that is not controlled by the Slantsdecision.
But, the USPTO may elect to punt the Redskins case anyways because its legal brief relies mostlyon the 1946McGinley case (saying 2(a) was constitutional). But, the McGinley case originated in the Federal Circuit and was expressly overruled in the Slants decision. So, the USPTO is relying on a case that is nowoverruled!
I am sure both sides are huddling to see whats next in their playbooks. But, many feel that the Slants decision will result in a Redskins end run and the cancellation will be reversed.
Anybody for crispy pig skins?
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