The U.S. Supreme Court announced this month that it will hear the case of In re Tam. This case concerns whether or not the U.S. Patent and Trademark Office can refuse to register a trademark on the grounds that it is disparaging to an ethnic group. Denial of registration of a disparaging trademark is mandated by U.S. trademark law. Simon Tam is a Chinese-American and front man for the musical group The Slants. The name has long been considered a racial slur against persons of oriental descent. Mr. Tam named his band The Slants to make statement about racial issues. The USPTO refused to register the name The Slants.
Earlier this year, the U.S. Circuit Court of Appeals for the Federal Circuit reversed the USPTO on the grounds that the refusal to register was violation of the First Amendment. I wrote an earlier article on this case. The court stated in its opinion: “Courts have been slow to appreciate the expressive power of trademarks. Words—even a single word—can be powerful. Mr. Simon Shiao Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.” I think the law is unconstitutional and vague.
The Supreme Court decided to hear the case after the U.S. Government appealed the Federal Circuit decision. The case should be decided next year.