Should the government protect tacky trademarks?

Over the years, the U.S. Patent and Trademark Office has registered plenty of names of brands, businesses, and musical groups that might offend—the Dead Kennedys, the Sex Pistols, and Redneck Gangsta, to name just a few. Congress has given the government the power to refuse trademarks that “may disparage or falsely suggest a connection with persons, institutions, beliefs, or national symbols, or bring them into contempt or disrepute,” but in practice, the patent office has been inconsistent.

Last week, the Supreme Court heard a case from a band who says the patent office violated its free speech by refusing to approve its name, a term some say offends Asian-Americans. Simon Tam, who is of Asian descent, founded the band in 2006.

“If our client, Mr. Simon Tam, had sought to register the mark of his band as The Proud Asians, we would not be here today. But he did not do that. Instead he sought to register The Slants,” Tam’s lawyer, John Connell, argued. He said the federal government’s job is to merely establish protections for trademarks, not interfere with the content of them.

“The control over the creation and design of the mark is retained at all times by the owner,” Connell said.

Government lawyer Malcolm Stewart tried to make a distinction, saying commercial speech is different. Tam can use the name all he wants. He can even sue under state law for names that confuse the public with similar logos, Stewart said. But he has no right to federal trademark protection.

Stewart gave the example of a soft drink company that wanted to register the trademark “Coke Stinks.”

“Congress can determine we would prefer not to encourage that form of commerce,” he said. “Obviously, under the First Amendment, we couldn’t prevent that kind of criticism, but we can decline to encourage it.”

The justices have options: They could narrowly rule the band’s name should be registered. They could say the law is too vague to be constitutional. Or the patent office could stop judging what’s offensive and just register trademarks.

Listen to “Legal Docket” on the Jan. 23 edition of The World and Everything in It.