Should your company’s brand, slogan, or logo lose its federal trademark protection just because it’s offensive? Under current law, yes, but today the Supreme Court heard arguments in a case that questions whether or not the U.S. Patent & Trademark Office should involve itself in questions of taste.

Federal law currently prohibits the Trademark Office from registering trademarks deemed “immoral, deceptive, or scandalous,” or that “disparage… persons, living or dead, institutions, beliefs, or national symbols.”

Perhaps the most well-known trademark to fall under this category is the Washington Redskins, whose trademark registration was canceled in 2014, but today’s SCOTUS hearing involved a case brought by Oregon-based rock band The Slants.

The band’s application to trademark its name — and thereby protect the group from sellers of knockoff merchandise and other products — was rejected by the USPTO because “slants” is a pejorative term for Asians.

However, the band — whose members are all Asian-American — has made it clear that the Slants name was chosen as a deliberate commentary on the state of race, culture, and music.

Rejecting or canceling a trademark doesn’t prevent the mark from being used; it just means there are fewer protections against others using the unregistered marks. However, because the mark could still be used in commerce, it had long been considered that the ban registering offensive trademarks did not violate the First Amendment.

That is, until Dec. 2015, when the Court of Appeals for the Federal Circuit ruled in the Slants case this prohibition against offensive marks “amounts to viewpoint discrimination.”

“When the government discriminates against speech because it disapproves of the message conveyed by the speech, it discriminates on the basis of viewpoint,” explained the court.

The USPTO appealed the case to the Supremes nearly a year ago, arguing that the disparagement provision in the law “does not prohibit any speech, proscribe any conduct, or restrict the use of any trademark. Nor does it restrict a mark owner’s common-law trademark protections.”

Which Brings Us To Today

Arguing the USPTO’s case before the eight SCOTUS justices, Deputy Solicitor General Malcolm Stewart explained [PDF] that copyright — which applies even when content is offensive — offers sufficient protections for the Slants’ intellectual property and their First Amendment rights.

However, Justice Anthony Kennedy questioned whether the accuracy of that sentiment, noting that it seems to “ignore the fact that we have a culture in which we have tee shirts and logos and rock bands and so forth that are expressing a point of view… using the market to express views.”

Chief Justice John Roberts jumped into the conversation, expressing concern about the “circular” nature of the USPTO’s argument.

“The claim is you’re not registering on my mark because it’s disparaging, and your answer is, well, we run a program that doesn’t include disparaging trademarks, so that’s why you’re excluded,” said Roberts. “It doesn’t seem to me to advance the argument very much.”

Justice Stephen Breyer questioned the need for the law’s ban on registering offensive marks.

“What purpose or objective of trademark protection does this particular disparagement provision help along or further?” he asked. “And I’m thinking of the provision that says you can say something nice about a minority group, but you can’t say something bad about them.”

Stewart responded by arguing that “A trademark in and of itself is simply a source identifier… Its function is to tell the public from whom did the goods or services emanate. It is not expressive in its own right.”

That said, he acknowledged that some trademarks go beyond providing just that base information to serve as a “kind of miniature advertisement,” but that Congress must have concluded when drafting this law that use of disparaging or offensive would cross a line and have a negative impact on commerce.

“As long as you are promoting your own product, saying nice things about people, we’ll put up with that level of distraction,” was Stewart’s summation of the attitude embodied in the law.

Breyer countered that there are multitudes of registered trademarks” used for very distracting messages, probably as much or more so than the one at issue, or disparagement… What business does Congress have picking out this one, but letting all the other distractions exist?”

Justice Ruth Bader Ginsburg flipped the issue of disparagement around on Stewart, asking what would have happened if the band had tried to register a trademark for a complimentary term like “Slants Are Superior” that also includes the pejorative.

Chief Justice Roberts piled on, asking why such a statement couldn’t be seen by some as violating the disparagement provision: “Why isn’t that disparaging of everyone else? ‘Slants Are Superior’…Well, superior to whom?”

This question of “viewpoint discrimination” — the practice of treating a party differently based on the views they express — is something that Justice Elena Kagan came back to repeatedly in her questioning, asking why it was okay to register, for example, a trademark that expressed positive comments about politicians in general, but not one that expresses a negative sentiment about politicians.

Stewart argued that the USPTO’s disparagement provision is constitutional because it “sweeps with a broad brush,” denying applications of offensive and disparaging marks regardless of the party being spoken ill of. He points to a decision in 1969 to deny an application for a anti-Soviet mark, even though you’d have been hard-pressed to find too many people in America at that time who would find this sentiment offensive.

“But that’s like saying it does so much viewpoint-based discrimination that it becomes all right,” responded Kagan.

When it came time for John Connell, the attorney representing Slants frontman Simon Tam, to speak, Chief Justice Kennedy raised the question of whether the band’s race — or their intent to be critical of the term “slants” — has any bearing on the ability to register this trademark.

Imagine a band using the same name, but made up of all non-white members. Additionally, this band wears makeup to slant their eyelids in an exaggerated manner and mocks Asians.

“Could the government, under a properly-drawn statute, decline to register that as a trademark in your view?” asked Kennedy.

Justice Breyer posed similar theoreticals, asking if the USPTO could deny trademark registrations to overtly disparaging statements like “Joe Jones is a jerk” or “Smith’s beer is poison.”

Connell said he saw no way in which the government could deny these applications without running afoul of the First Amendment, “because marks constitute both commercial speech and noncommercial speech, and the disparagement clause specifically targets the noncommercial speech and denies registration to marks that only express negative views.”

Justice Sonia Sotomayor brought up the point that a lack of trademark registration does not mean The Slants are without legal recourse against impersonators.

“If another band called themselves Slants, they would be subject to deceptive advertisements because they wouldn’t be this Slants,” said Sotomayor. “You are asking the government to endorse your name to the extent of protecting it in a way that it chooses not to… And why shouldn’t we consider it in those ways when your speech is not being burdened in any traditional way?”

“It is a burden because our client is denied the benefits of legal protections that are necessary for him to compete in the marketplace with another band,” answered Connell, contending that state-level and common-law trademark protections are not as robust as those provided by the USPTO.

Justice Ginsburg asked about the government’s interest in wanting to distance itself from racial slurs and other offensive language. She pointed to examples like state government restrictions on what can be printed vanity license plates.

“This is not a government ID,” answered Connell, “issued on government property, controlled by the government as to design and content and so on. It’s — in fact, it’s exactly the opposite.”

Justice Kagan noted that trademark law has other restrictions, like not registering marks that are purely descriptive (you can’t trademark “Soap” for use on soap products), or that use government insignias, or is deliberately misdescriptive.

“These might be viewpoint-neutral, but they’re certainly not content-neutral,” said Kagan, “and yet… I think that a challenge to many of these would fall flat.”

The court will issue its ruling on this case later this year.

What About The Redskins?

The Redskins attempted to jump a step on the legal ladder and have its trademark dispute heard by SCOTUS before it had even been argued in front of an appellate court, but the Supremes chose not to hear the team’s case.

That appeal is now on hold in the Fourth Circuit pending the outcome of the Slants dispute. Should the USPTO fail to overturn the Federal Circuit ruling, it would likely give the Trademark Office little choice but to restore the team’s currently canceled registrations.

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