Federal Circuit Overturns Prohibition On "Disparaging" Trademarks (arstechnica.com)

New submitter flopsquad writes: On December 22, the Federal Circuit released a decision overturning, on First Amendment grounds, the part of US trademark law that prohibits registration of "disparaging" marks. This case concerned the USTPO's refusal to register a mark for the Asian-American band "The Slants". However, the decision will no doubt have wider implications for brands such as the embattled Washington Redskins, whose mark was ordered canceled earlier this year.

Comments

Doesn't anybody have a sense of humor these days??

[Anonymous Coward]

I think "The Slants" is a brilliant name!!!

Right decision.

[Weirsbaski]

It was the right decision- even jerks need to be allowed freedom of speech. (And I say that as one of the jerks :-) )

Re:Right decision.

[DaHat]

While I agree with you, SCOTUS probably won't given their previous ruling on offensive license plates.

Re:Right decision.

[Br00se]

They determined that license plates were government speech and that the government could restrict it. It's not like they outlawed offensive bumper stickers.

Besides, trademarks exist to benefit the public to prevent confusion in the marketplace. In theory. They should not be considered property, not even "intellectual property" in my opinion. They should exist only to prevent a 3rd party from taking advantage of the good (or bad) relationship between a mark holder and the public.

Re:Right decision.

[Br00se]

Yes, I don't deny that they are, however ownership is not absolute. It's why companies like Xerox have to fight to keep the term from becoming generic. Google Genericide. I wonder how long before Google becomes genericided.

Also, you can't sit on a Trademark the way you can sit on a domain name. You must use it in trade and protect it, or it can be considered abandoned in a little as three years (US). Too bad we don't have s similar limit for copyright.

Re:Right decision.

[cpt kangarooski]

Except they are, which is why they can be bought and sold not unlike domain names.

No, not that freely. Just outright selling a trademark would be considered naked licensing, i.e. the transfer of the mark, without the reputation in the marketplace that the mark stands for. The result is that the mark is treated as having been abandoned, and that any previous junior users of the mark now have seniority over you if you want to reestablish protection.

To transfer a mark correctly is a lot of work, and takes a lot of time. It's generally part and parcel of the sale of the entire business that uses the mark, so that the reputation is preserved.

Re:Right decision.

[KGIII]

I once considered getting a car painted like the General Lee. Of course, it was an old Volvo and it would have been funnier than hell to see the looks on people's faces when they notice it is being driven by a long-hair with kind of dark skin. I'm also pretty sure that I'd have been shot. I didn't do it.

I did, however, once find that "DAVID" was available for a vanity plate and got that. That was one of the stupidest things I ever did. If you live in a semi-rural or rural area, do not get a vanity plate with your name on it, kids. Do not do it... I got in so much trouble with people. Why yes, yes I did drink back then.

Re:Doesn't anybody have a sense of humor these day

[Anonymous Coward]

No, now where was the required trigger warning before your problematic comment?

How is that band name "disparaging"?

[timrod]

I get that "slant-eyed" is a racist description of Asians, but there is absolutely nothing racist about the word "slant". Hell, it even mentions that the band is Asian-American.

Re:How is that band name "disparaging"?

[arth1]

I get that "slant-eyed" is a racist description of Asians, but there is absolutely nothing racist about the word "slant". Hell, it even mentions that the band is Asian-American.

This is likely the reason why it was rejected. In itself, it is not offensive, but in the context of Asians, it becomes so.
Much like Top Gear's "There's a slope on the bridge".

MInd, I'm not saying that rejecting the name was the right decision, but I believe the context was what mattered, not the word.
It's like an Indian-American band called themselves "Towel" - it might be considered derogatory by some non-band members.

Re:How is that band name "disparaging"?

[AmiMoJo]

Words can't be inherently racist. Even "nigger" can be acceptable in some circumstances. It always comes down to context.

Re:Doesn't anybody have a sense of humor these day

[phantomfive]

Also, who gets to decide what's disparaging or not?

Nobody anymore, according to the supreme court.

What if someone decides that words like "Christian" are disparaging?

That's why this is a good decision by the supreme court.

Re:Doesn't anybody have a sense of humor these day

[Tokolosh]

"If you stay here much longer, you will go home with slitty eyes." – Prince Philip, speaking to a British student during a trip to China in 1986.

Re:Doesn't anybody have a sense of humor these day

[Mal-2]

First, this wasn't the Supreme Court, it was a District Court. If appealed, SCOTUS could hear it, send it back for reconsideration with comments, or let it stand.

Second, I'm surprised it has taken this long. Does this mean Los Chingaderos (the band) can now get some airplay? Will LMFAO ever be announced using their full name?

Re:Doesn't anybody have a sense of humor these day

[Krishnoid]

At least this guy does.

Re:Doesn't anybody have a sense of humor these day

[davester666]

'Christian' is my fucking name, you worthless pile of shit. Yes, it is the name I demand people use whenever I'm fucking them.

Re:Inferiority complex

[Darinbob]

I do not! My complexes are as superior as anyone else's!