A federal appeals court ruled Tuesday that the government can't refuse to register trademarks that might be considered disparaging or offensive, a decision that could bolster the Washington Redskins in their legal fight over the team name.
The ruling from the U.S. Court of Appeals for the Federal Circuit sided with an Asian-American rock band called The Slants, which has spent years trying to register the name. The U.S. Patent and Trademark Office had refused to give it legal protection on the ground that it disparages Asians.
Writing for a nine-judge majority, Judge Kimberly Moore said the First Amendment protects “even hurtful speech that harms members of oft-stigmatized communities.” She said a federal law barring offensive trademarks is unconstitutional.
“Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others,” Moore said.
The government must now decide whether to appeal the case to the Supreme Court.
In a separate case, the Redskins are appealing the July order of a federal judge in Virginia that canceled the team's trademark registration. The judge ruled the name Redskins may disparage Native Americans.
While the Redskins dispute is before a different federal appeals court in Richmond, Virginia, the decision by the Federal Circuit involves the same legal issues. The appeals court hearing the Redskins case is not bound to follow Tuesday's decision.
The Redskins have argued in court papers that a ban on registering disparaging trademarks unconstitutionally burdens speech based on content and viewpoint. The team has long said that the name is intended to honor Native Americans, not insult them, and that there is no proof that a substantial segment of that population finds the word Redskins offensive.
In her opinion, Moore acknowledged the ruling could have a broader impact on other cases.
“We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities,” Moore said.
Slants founder Simon Tam, who formed the band in Portland, Oregon, in 2006, has long argued that the band chose the name as a statement of racial and cultural pride.
“This band was created specifically to celebrate Asian-American culture and kind of share that perspective -- our slant on life, if you will,” Tam said in an interview.
“It feels kind of unreal,” he said. “Not only that we won, because it's been six years in the making, but that because of our band we in some way have expanded First Amendment rights for millions of Americans.”