Slants Decision May Reach Beyond Disparaging Remarks

Fenwick trademark litigation partner Eric Ball spoke with The National Law Journal about a closely watched trademark case argued in the U.S. Supreme Court.

The Slants case, Lee v. Tam, hinges on whether a portion of the Lanham Act that forbids disparaging trademarks violates the First Amendment. In this case, a musician is trying to register the trademark The Slants – which can be considered a racial slur – for his Asian-American band.

Ball noted that while the justices had sharp questions for both sides, he said the court could craft a narrow decision, and find that the law as applied to The Slants trademark was unconstitutional, but not that Section 2(a) was unconstitutional on its face.

However, if the court did rule that disparaging marks are constitutionally protected, then "the natural road" would lead toward "immoral and scandalous [marks] not being OK as well," Ball said.

The case is likely to affect the Washington Redskins’ high-profile and long-running dispute with the United States Patent and Trademark Office. Some have deemed the team’s name a disparaging and offensive racial slur, and are pushing the USPTO to revoke the mark.

The full article is available through The National Law Journal website (subscription required).​​​