Judges in the Federal Circuit have ruled that the federal government’s ban on “disparaging” trademark registrations violates the First Amendment, striking down the provision that was used by the US Patent and Trademark Office to revoke the Washington Redskins trademark registrations.
The Court’s ruling strikes down the provision of the Lanham Act that was used against the Washington Redskins in the team's own trademark dispute. The ruling is for a separate case, filed by members of a band called The Slants who were refused trademark registration for their name on the grounds that it was offensive to Asian-Americans. The Federal Circuit panel declared the Lanham Act’s Section 2a to be an unconstitutional discrimination against unpopular speech.
“Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities,” wrote Judge Kimberly Moore, “but the First Amendment protects even hurtful speech. The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks.”
The ruling is likely to help the owners of the Washington Redskins trademark, as Section 2a is the same provision cited by the Trademark Trial and Appeal Board in June 2014 when it revoked the team’s registrations as disparaging to Native Americans. That ruling was upheld by a federal judge this summer, and the team is currently appealing the case in the Fourth Circuit.