On June 19, 2017, in Matal v. Tam, the U.S. Supreme Court affirmed a Federal Circuit decision, holding that Section 2(a) of the Lanham Act, which prohibits the United States Patent and Trademark Office (“PTO”) from registering disparaging trademarks (“disparagement clause”), violates the Free Speech clause of the First Amendment of the U.S. Constitution, and is therefore unconstitutional.1 Not only does this decision impact communities seeking to reappropriate historically derogative terms, but it also impacts a wide range of ongoing trademark disputes, such as the Pro-Football, Inc. v. Harjo case involving the cancellation of the registration of the Washington Redskins football team, and represents a significant victory for free speech advocates.
I. Background
“The Slants” are a Portland-based all-Asian American dance rock band led by Simon Tam, their lead singer. The band not only “offer[s] up catchy dance beats,” but dedicates their name to taking ownership of stereotypes about people of Asian descent.2 In 2011, Mr. Tam applied for federal trademark registration of the band’s name – “THE SLANTS” – for the purpose of “entertainment in the nature of live performances by a musical group.”3 The PTO examiner rejected the application, finding that “the slang term ‘slant’… when used to indicate ethnicity, is disparaging to… persons of Asian descent” under Section 2(a) of the Lanham Act.4 When Tam appealed the denial to the PTO’s Trademark Trial and Appeal Board (“Board”), the Board affirmed the examiner, finding that “it is abundantly clear from the record not only that THE SLANTS . . . would have the ‘likely meaning’ of people of Asian descent but also that such meaning has been so perceived and has prompted significant responses by prospective attendees or hosts of the band’s performances.”5
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