Disparaging Trademarks

Introduction

In the United States, trademark registration faces restrictions when it involves content that "consists of or comprises immoral, deceptive, or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, bringing them into contempt or disrepute." This article explores the implications of this rule, particularly focusing on the controversy surrounding trademarks containing the term "Redskins."

The Washington Redskins Trademark

The "Washington Redskins" are a renowned football team with a trademark history dating back to 1933. However, despite their long-standing presence, the registrability of these marks has been a subject of legal battles for over two decades. It all started in 1992 when a group of Native Americans initiated a cancellation action against the trademark.

The Landmark Case: The Slants

It appeared that the "Redskins" trademarks were on the brink of cancellation until a groundbreaking case involving the musical group "The Slants." This group argued that the specific paragraph in the Lanham Act, which restricts trademarks with disparaging content, infringes upon free speech and is unconstitutional under the First Amendment's Free Speech Clause. To everyone's surprise, the Supreme Court accepted this argument, potentially paving the way for the existence of disparaging trademarks.

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