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Supreme Court Strikes Down Prohibition on “Offensive” Trademark Registration

On June 19, the Supreme Court ruled in Matal v. Tam that the Patent and Trademark Office (PTO) could no longer deny trademark registrations for “marks that disparage the members of a racial or ethnic group.” Before this decision, the PTO used the Lanham Act’s Disparagement Clause as its legal basis for prohibiting protection for offensive names. The Court held, however, that the Disparagement Clause violated the First Amendment, reasoning that “Speech may not be banned on the ground that it expresses ideas that offend.”

The Court’s decision has important ramifications for the NFL’s Washington Redskins and other sports teams with names and mascots that many consider to be offensive. The “Redskins” was considered racially offensive on several occasions by the PTO and was held to be ineligible for federal trademark registration. The Supreme Court’s decision allows for the Redskins name to receive the benefits of federal registration.

Underlying the Court’s decision is its belief that it is not the PTO’s responsibility to police offensive names, especially given how public opinion can vary significantly over time. For example, when the Redskins name was first established, the public may not have considered the moniker to be offensive.  Public opinion has recently soured considerably towards the Redskins name, however, as well as towards similarly named sports teams (e.g., Cleveland Indians, Atlanta Braves, Kansas City Chiefs). The shifting and dynamic public attitudes illustrate the difficulty in determining what is considered offensive and the Court ultimately determined that the PTO should not be tasked with deciding what is offensive.