What is a Disparaging Trademark?
January 15, 2016
Disparaging band names may turn off potential listeners and dissuade retailers and online marketplaces from carrying albums, but when it comes to who may reject the group, the buck stops with the government.
The ruling on the Washington Redskins’ name, in which the team’s trademark was denied, may lead the casual observer to think otherwise. However, a recent decision on the name of an Asian-American band called The Slants established that while the government may not approve of a trademark, it cannot cancel it for that reason. In July, a federal judge revoked the football team’s federal trademark on the Redskin’s name, citing a legal standard that allows cancelation if a name disparages a substantial subset of a certain group – in the case of the Redskins, that group is Native Americans. The judge noted that the government has editorial control over federal trademark registers.
However, a more recent ruling granted The Slants permission to trademark their potentially disparaging name. The Court of Appeals for the Federal Circuit ruled that a trademark does not transform the band’s name, initially classified as private speech, into government speech. Due of this, the government has no right to cancel a trademark just because it considers it disparaging. In the decision, the court compared trademarks to birth certificates, street parades or driver’s licenses, none of which the government can revoke on the grounds of disparaging speech.
The ruling is not only a potential win for the Washington Redskins, but for any group that wishes to trademark a name some people may find offensive. If your band name may be disparaging to a certain group of people, but you’d like to trademark it, speak with an experienced entertainment law attorney for more information on trademark law.