What’s the first thing that comes to mind when I refer you to “the Slants?” Is it a non-perpendicular or horizontal line? Is it the news coverage of MSNBC or Fox News? Is it a derogatory term for Asians? Or, perhaps its “the first all-Asian American dance rock band in the world” whose efforts to trademark their band name, “The Slants,” were denied trademark registration under 15 U.S.C. 1052(a), which precludes the registration of consisting of or comprising “immoral, deceptive, or scandalous matter.”
This was certainly not the first registration rejected on the “immoral” or “scandalous” subject matter bar, and its unlikely to be the last. Those of you following trademark news have probably heard of the disputes surrounding the Washington Redskins, which DuetsBlog has previously discussed. (See list here.) However, while upholding the rejection of “The Slants” registration, one of the Judges on the Federal Circuit panel opined perhaps more strongly than ever before that there are real First Amendment problems with 1052(a)’s prohibitions.
Judge Kimberly Moore penned a lengthy “additional views” opinion nearly twice as long as the opinion affirming the rejection. She made a compelling case that 1052(a) is unconstitutional at least as to the “immoral” or “scandalous” prongs and suggested the Federal Circuit revisit its precedent regarding the constitutionality of those provisions. I encourage anyone interested in the topic to read the opinion, as I will not do it justice here.
There are certainly rational arguments to be made on both sides of this issue. I, however, lean towards finding the provision unconstitutional, particularly as applied to the group “The Slants,” who have adopted the name to “take ownership” of anti-Asian stereotypes. The simple fact is that it becomes exceedingly difficult to make consistent and reasonable conclusions on the “immorality” of any marks. Moreover, the entire purpose of the First Amendment is to allow ideas (no matter how offensive the may be) exposure to the “marketplace of ideas” so they can be rejected or accepted by society as a whole. If we do not allow society to be exposed, then we’ve lost faith in the ideal that gave rise to the First Amendment in the first place, and we’ve simply engaged in censorship.
Breaking Update: Just this morning, the Federal Circuit issued a sua sponte order vacating its prior decision and ordering the parties to brief for en banc review the question: “Does the bar on registration of disparaging marks in 15 U.S.C. § 1052(a) violate the First Amendment?” This could mean that the Federal Circuit is inclined to hold the “disparaging marks bar” is unconstitutional. However, it could also be that the Court wants to eliminate any doubts about the law caused by Judge Moore’s lengthy “additional views” opinion. In either event, this is likely to be a very important ruling on trademark registration that could have a very significant impact in the near future.