U.S. Supreme Court Justices Doubtful Over Law Barring Offensive Trademarks

The Supreme Court raised doubts regarding a law that bars the government from registering trademarks that are deemed offensive. On Wednesday, the justices heard arguments in a dispute, which involves an Asian-American band called the Slants for being denied a trademark. The U.S. Patent and Trademark office said the name maligns Asians. Some consider the term "slant eye" a racist slur.

Justice Elena Kagan reflected the concerns of several justices when she said that government programs are not supposed to make a distinction based on a frame of reference, ABC News reports. Kagan stated that such would be a fairly classic case of viewpoint discrimination. The band affirms in saying that the 70-year-old law violates freedom of speech. Slants front man Simon Tam argued that the band adopted the name to reclaim a derisive slur and revamp it into a badge of ethnic pride. But the trademark office said such term can be offensive even if used in a positive light.

Back in 2015, the federal court ruled that the disparagement provision of the 1946 Lanham Act was unconstitutional citing the First Amendment which forbids the government from banning offensive speech. However, the federal government appealed the decision to the Supreme Court arguing that the law does not restrict speech because the disputed names may still be used without federal registration.

On the contrary, the Obama administration wants the high court to overturn that ruling. Justice Ruth Bader Ginsburg said the law isn't strictly enforced. She noted that the term Heeb, which is considered offensive to Jews, was approved in one trademark application, but not in another. When Ginsburg asked if the phrase "Slants are superior" would pass, Justice Department lawyer Malcolm Stewart said it probably would.

However, some justices raised the concern that enforcing absolutely no limits on trademark names might be abusive. Kagan noted that the trademark law also has restrictions on marks that are libelous. Thus, Justice Stephen Breyer said the Slants are free to use the name in all kinds of ways, just not on the trademark itself.

A victory for the Oregon-based band would be welcome news for the Washington Redskins, embroiled in their own legal fight against the trademark office, which cancelled the football team's lucrative trademarks in 2014 after finding their name disparaging to Native Americans. The team appealed and the case is put on hold pending the outcome of the Slants' case.