Abstract:
Do you want your children to live in a world where everyone is placed in a category depending on their race, gender, or economic status? A recent case concerning the Asian-American rock band ‘The Slants’ and their unsuccessful attempt to gain trademark protection where their application was denied because the examining attorney determined that the mark was disparaging to Asian-American society as a whole. The Latham Act, which codifies Trademark Law, holds a mark is disparaging when that society as a whole considers the mark to be offensive. However, in practice the examining attorney makes the decision, which should be viewed as unconstitutional as it may violate First and Fifth Amendment fundamental rights. Similarly, the Washington Redskin’s mark came under fire for its offensive nature, yet polls showed the majority of Native Americans did not find the mark offensive. The Sons of the Confederate Veterans sought to place a confederate flag on a Texas license plate; the court denied the mark due its offensive nature, but used a public poll to gather opinions of Texans.
Some offensive marks have received protection, but if polls of the referenced group were taken, the marks likely would be considered disparaging. Thus, to allow the examining attorney to decide whether a mark is offensive to any referenced society, even if that individual is not a member of that society, seems unethical and would further separate us as human beings.
Lewis, Jordan Alexander, The Future of Disparagement: How Trademark Law Suppresses Freedom of Speech (April 9, 2017).
First posted 2017-04-13 07:05:50
Leave a Reply