An appeals court on Tuesday struck down the so-called “disparagement clause” in federal trademark law, giving Washington’s football team an edge in the ongoing court battle over its controversial name.
In a decision that echoed the NFL team’s argument that the clause is unconstitutional, the court reversed a U.S. Patent and Trademark Office decision to reject the proposed name of Asian-American dance-rock group The Slants because it could offend people of Asian descent.
Nearly all of the judges active in the U.S. Court of Appeals for the Federal Circuit, which handles trademark disputes and sits in Washington, hear and deliberated in the case. In Tuesday’s 62 -page ruling, nine of the 12 magistrates agreed that the disparagement clause of Section 2( a) of the Lanham Act — the given name of federal trademark law — constitutes “viewpoint discrimination” and violates the First Amendment.
“It is a bedrock principle underlying the First Amendment that the government may not penalize private speech simply because it disapproves of the message it conveys, ” wrote Judge Kimberly Ann Moore for the court’s majority.
Several other magistrates wrote separately to express agree and dissenting views.
Calling Section 2( a) a “hodgepodge of restrictions, ” Moore operated through a litany of names the trademark office has invalidated under the clause in recent years. The very first one listed was that of the Washington football team. Other such trademarks included “Stop the Islamisation of America, ” “The Christian Prostitute” and “Have You Heard that Satan Is a Republican? “
“The legal significance of standpoint discrimination is the same whether the government disapproves of the message or claims that some part of the populace will disapprove of the message, ” Moore wrote.
That opinion is sure to enliven the broad alliance of civil rights and civil liberties groups who rallied behind Simon “Young” Tam, the protagonist of Tuesday’s ruling and bandleader for The Slants. Tam had applied with the trademark office to register the band’s name, hoping to “take ownership” of racial stereotypes against Asians, but his application was rejected.
Tuesday’s ruling reversed that determination and sent Tam’s case back to the trademark office for reconsideration. In the process, the court called out all federal departments for its “inconsistent” and “arbitrary” adjudications of names it sees distasteful while favoring those that espouse positive or neutral views.
“Section 2( a) is a viewpoint-discriminatory regulation of speech, created and applied in order to stifle the use of certain disfavored messages, ” Moore wrote.
The ruling all but guarantees a boost to the Washington NFL team’s own defense of its name — which critics say should forbidden by federal trademark law because it belittles Native Americans.
In July, a federal court upheld a U.S. Patent and Trademark Office cancellation of the name, and that decision is now being appealed by the football team.
Lawyers for the team and the group of Native Americans involved in that disagreement didn’t respond to requests for commentary from The Huffington Post.
But in a court brief are presented in October, the team’s lawyers stimulated basically the same debate Tam did — that cancellation of its trademark is unconstitutional and that federal trademark law “facially discriminates based on content and viewpoint.”
No matter how the court rules in that case, a future Supreme Court showdown seems certain.
Travis Waldron contributed reporting .
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