U.S. Appeals Court Says Gov’t Cannot Censor Offensive Trademarks

Andrew Chung, Reuters, December 22, 2015

A U.S. appeals court on Tuesday struck down part of a federal law that barred the registration of offensive trademarks because it violates the First Amendment of the U.S. Constitution, acknowledging that its ruling could lead to more hateful trademarks in the future.

The decision by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., vacates the refusal by the U.S. Patent and Trademark Office to register the name of the Asian-American rock band, The Slants. It could also affect the decision by the agency to cancel the trademarks of the National Football League’s Washington Redskins.

“We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities,” Circuit Judge Kimberly Moore said in the opinion on behalf of the 12 judges who took part in hearing the case.

“Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others,” she wrote.

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Tuesday’s ruling sends the case back to the trademark office for further proceedings.

Interest in the case is high because the more high-profile Redskins appeal is underway at the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, which is not obliged to follow the Federal Circuit ruling.

University of Notre Dame Law School professor Mark McKenna said Tuesday’s ruling is very likely to be appealed to the U.S. Supreme Court, whose own ruling “will also control the fate of the Redskins marks.”

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