Yeah, you can trademark an ethnic slur: Supreme Court hands victory to Asian-American rock band in landmark ruling

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In an 8 to 0 vote, the Supreme Court ruled on Monday that a federal regulation prohibiting offensive trademarks was an unconstitutional infringement of free speech.

“It offends a bedrock First Amendment principle,” Justice Samuel Alito wrote in the court’s unanimous opinion. “Speech may not be banned on the ground that it expresses ideas that offend.”

The plaintiff in the case at hand was an Asian-American rock band called the Slants, which had attempted to register the name with the U.S. Patent and Trademark Office. The group’s application was refused on the grounds that the band name was inherently offensive.

The high court’s ruling upheld an earlier verdict in favor of the Slants and their founding member, Simon Tam. In a 2015 article, he described his intentions and why his group’s trademark application deserved to be approved:

I named the band the Slants because it represented our perspective — or slant — on life as people of color. It was a deliberate act of claiming an identity as well as a nod to Asian American activists who had been using the term for decades. . . .

Rather than focusing on whether or not Asian Americans actually believed our use of the word to be disparaging, we started questioning why the USPTO accused us of using a racial slur to begin with. After all, slant can mean any number of things, and the racial connotation was relatively obscure. In fact, over the years, the trademark office has received eight hundred applications that include variations of the word, but not one was rejected for being racist toward Asians — until an Asian applied.

In an interview today, Tam argued that the ruling meant that “marginalized groups get to decide what’s right for ourselves.”

Some have speculated that the Slants’ victory might be helpful to the Washington Redskins football team, which has repeatedly been attacked for its name, perceived as derogatory by many Native Americans and others. In 2014 the Trademark Office removed the team’s trademark protection on the grounds that the name was offensive.

Lawyers for the Redskins filed a brief with the Supreme Court in support of the Slants’ argument, which was cited in the justices’ opinion.

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