On October 2, 2015 the American Civil Liberties Union (ACLU) will argue before the U.S. Court of Appeals for the Federal Circuit, bringing a case that touches on topics and issues as varied as racism, free speech, trademarks, football and rock bands. Fenwick trademark litigation lawyer Eric Ball spoke with Bloomberg BNA about the upcoming case.
The ACLU will argue that the Patent Trademark Office’s (PTO) refusal of a federal trademark for Asian-American rock band “the Slants” violated band leader Simon Shiao Tam’s First Amendment right to freedom of speech.
Tam had decided on the name “the Slants” to “reclaim” a word used as a racial slur for Asian-Americans, according to Bloomberg. However, the Trademark Trial and Appeal Board (TTAB) declared the name inappropriate under Section 2(a) of U.S. trademark because it disrespects many Asian-Americans, Bloomberg reported.
“I think there's a better than 50 percent chance that [this issue] could get to the Supreme Court,” Ball told Bloomberg regarding the case.
The ACLU argues that Section 2(a) of U.S. trademark under which the TTAB denied Tam the trademark is unconstitutional in light of the First Amendment, reported Bloomberg.
Section 2(a) states that the PTO cannot register any trademark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter 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.”
In a similar case, the Redskins football team is also arguing for freedom of speech rights and the unconstitutionality of Section 2(a) in defense of its team name which had been found disrespectful to many Native Americans, Bloomberg reported. The U.S. Court of Appeals for the Fourth Circuit is hearing the Redskins case.
The Federal Circuit has decided that they will not allow the Redskins to participate in the Slants argument. The team has written an amicus brief in support of Tam and the ACLU.
The two courts may decide the pair of cases differently which could push the Slants case to the Supreme Court, Ball told Bloomberg.
“I think it's going to be really curious,” Ball said. “I can see the Federal Circuit having some kind of opinion that in some way overturns 2(a) and I can see the Fourth Circuit coming out the other way just by affirming. Then you would have a split and then you're off to the Supreme Court.”