Big news today for anybody hoping to register a trademark for their derogatorily named ska group. After years of litigation, Simon Tam—frontman of The Slants—has finally secured the right to copyright his band’s offensive name. According to justice Samuel Alito, the Lanham Act provision against offensive marks actively goes against the Constitutional protections for free speech: “It offends a bedrock First Amendment principle. Speech may not be banned on the ground that it expresses ideas that offend,” Alito writes in his opinion.
This makes the end of Tam’s lawsuit, which began back in 2015. Trademark examiners refused his registration of “The Slants” on the grounds that it was too offensive, despite Tam’s claims that the name was intended to reclaim a racial slur.
“After an excruciating legal battle that has spanned nearly eight years, we’re beyond humbled and thrilled to have won this case at the Supreme Court,” the band stated in a Facebook post. “This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.”
The decision is likely to open the doors for several other companies wishing to use edgier names for their trademarks. In particular, the NFL’s Washington Redskins—who will evidently stick by that name until death—should be able to re-register for trademarks previously canceled for being disparaging towards Native Americans.
A huge motivator for this decision was what Alito called the “vagueness of the disparagement test and the huge volume of applications has produced a haphazard record of enforcement.” In their report, THR notes the inconsistencies found in allowing N.W.A. (“Niggaz Wit Attitudes”) trademarks but refusing actor Damon Wayans’ request to use “Nigga” for clothing.
Hopefully, this ruling will make everything simpler, but it also allows for the possibility of a great deal of hurtful trademarks. It’ll be interesting to see how companies and bands use this new freedom.