Thursday, June 29, 2017

Trademark's New Wave

In Matal v. Tam, an instant landmark decision in trademark jurisprudence, the United States Supreme Court ("the Supremes") held, on June 19, 2017, that the Free Speech Clause of the First Amendment of the U.S. Constitution forbids the U.S. Patent and Trademark Office ("USPTO") from denying registration of a mark simply because it may be racially-derogatory.  The Lanham Act includes specific authorization for such a denial in 15 U.S.C. §1052(a), which ostensibly empowers the USPTO to prohibit registration of any otherwise-registerable mark that

Consists of or comprises immoral, deceptive, or scandalous matter; or...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...
As the Supremes explain in their decision,
This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asiandescent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force. 
The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).
As Simon Tam, the member of The Slants who filed the trademark application, explained to Time magazine, his band's name is meant to convey a triple entendre:
It actually sounds like a fun, 80s, New Wave-kind of band. And it’s a play on words. We can share our personal experiences about what it’s like being people of color—our own slant on life, if you will. It’s also a musical reference. There are slant guitar chords that we use in our music.
The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others.
Applying strict scrutiny, the CAFC failed to find a compelling governmental interest for abridging the band's speech by denying it a trademark registration.  The Supremes broadly agreed with the CAFC, though several groups of justices filed concurrences to clarify the extent of, and particular reasons for, their decisions.

Nevertheless, the Supremes did all agree to the following droll indictment of government speech:
It is...far-fetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.
One of the underappreciated advantages afforded by the Separation of Powers in U.S. government is the delicious opportunity for each branch of government to lampoon the others.  To borrow the title of one of The Slants' songs, whenever one of the three branches of government gets uppity, either of the other branches can say, "I Wanna Break You Down."  A governance feature as cool as that should be trademarked.