Wednesday, 22 November, 2017

High court makes right call in case on 'offensive' band name

Asian-American band win top court case over offensive trademark Asian-American band win top court case over offensive trademark
Grace Luna | 21 June, 2017, 07:12

Most troubling with Alito's written opinion was the comment that the federal government "has an interest in preventing speech expressing ideas that offend".

When the Asian-American dance-rock band the Slants tried to trademark their name, they were denied by the U.S. Patent and Trademark Office. The court's decision also likely will put an end to the efforts to cancel the federal registrations of "Redskins" trademarks, owned by the National Football League's Washington D.C. franchise, on the basis that the trademark is disparaging to Native Americans.

The Supreme Court agreed on Monday, finding 8-0 that an Asian-American band had the right to trademark "The Slants", even though some Asians would find the the term offensive. "Based on this case, however, we've since reconsidered our underlying position". One can only wonder how many trademarks have been refused registration because certain groups of people found them to be offensive.

St. John's University intellectual property law center director Jeremy Sheff said while the Supreme Court has essentially shut the door on legal challenges to the Redskins name, "there can still be social pressure brought to bear". "The Court's decision, however, was narrow", the plaintiff's statement said.

The language allowing trademark denials was based on the tenet that granting a trademark registration was the same as the government actually speaking - or advocating - the trademark, and the trademark office argued it shouldn't be forced to speak in ways it disapproves of.

The council also noted studies that have shown the use of offensive terms such as "Redskins" as part of a school's mascot, name or symbol has a detrimental effect on Native American students attending those educational institutions. But the U.S. Patent and Trademark Office denied the request.

"I don't like anything about the Washington Redskins", First Amendment scholar Rodney Smolla told USA TODAY Sports when the professors' brief was filed in 2015. However, I do think there will be public backlash against names that might be offensive to a particular group of people. The case involves a very small corner of federal law, but implicates the broader logic of political correctness, which is that speech should be silenced for the greater good if there is a chance that someone, somewhere might be offended by it.

Schiller, the intellectual property attorney at Boies Schiller Flexner in NY, is a lifelong fan of the team.

But Amanda Blackhorse, a Navajo woman who has been the lead plaintiff in a yearslong legal fight against the team's name, said the fight is not over, adding that years of litigation have found that "the term is offensive". The Redskins say the name honours aboriginals.

In 2014, the Redskins organization was unable to trademark its name after courts ruled the name was disparaging toward Native Americans. The question for the team is: "Why would you want to?"

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