US Supreme Court Finds “Disparaging” Trademarks are Protected by the First Amendment

In a recent ruling, the U.S. Supreme Court unanimously reminded the public that “offensive” or “disparaging” speech is fully protected when registering a trademark with the Patent and Trademark Office (PTO). The Court noted that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”  More importantly, the Court found that “giving offense is a viewpoint.” The viewpoint analysis is especially important for trademark applicants because “the danger of viewpoint discrimination is that the government is trying to remove certain ideas or perspectives from a broader debate.”

Protecting the rights of trademark applicants, in this monumental decision, the Court found that trademarks are private speech rather than government speech. Justice Alito, writing for the Court, countered the government’s argument that the PTO should be free to grant or deny trademarks based on offensiveness or disparagement by stating: “Does that mean the government could refuse to recognize an author’s copyright to his book if it found his views offensive?” Such freedom by the PTO violates the Free Speech Clause of the First Amendment.

The decision protects more than trademark applicants. It protects all intellectual property applicants, including band names such as The Slants in the case here, likely NFL teams such as the Redskins, small businesses and individuals looking to file trademarks with the Patent and Trademark Office, and even extending to other intellectual property rights such as copyrights. If your trademark has not yet been registered with the PTO or has been denied for offensiveness or disparagement, please contact Michelle Sundgaard at msundgaard@pselaw.com or (937) 223-1130.

AUTHOR: Jan Burden
JBurden@pselaw.com