U.S. Supreme Court Justice Elena Kagan voiced what could be a prevailing opinion of the justices in doubting that the federal trademark office could refuse disparaging trademarks, calling it a “fairly classic case of viewpoint discrimination.” The case was brought by an Asian American band who were denied a trademark registration for their name, the Slants. The 1946 Lanham Trademark Act banned trademarks that “may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (The Washington Post, January 18, 2017, by Robert Barnes)
Some on the court, though, thought that it might be going too far to allow all messages including libel. Justice Stephen Breyer said the Slants were free to use their name in other contexts so that the ban was not in itself censoring general expression. (WTOP, January 18, 2017, by the Associated Press)
The hearing produced no sure direction for the court. “The Supreme Court could go broad by determining the government holds no right to refuse a trademark registration on the basis of offensiveness…or it could issue a narrow ruling by merely indicating the parameters of a disparaging determination by the PTO. But then again, if the justices defy expectation and uphold the constitutionality of the disparaging provision of trademark law, it could be because PTO’s disapproval doesn’t necessarily affect a registrant’s right to use his or her claimed mark,” wrote Eriq Gardner in The Hollywood Reporter, January 18, 2017.