New Court Defeat for Obama Means Win for Redskins, Free Speech and Intellectual Property Rights
Whatever the Washington Redskins’ fortunes in the NFL playoffs that kick off this week, they’ve already enjoyed a notable judicial victory beyond the playing field. The ruling also constitutes a victory for free speech and intellectual property (IP) rights, but yet another embarrassing judicial defeat for the Obama Administration on one of Barack Obama’s trivial pet crusades. Specifically, the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., commonly known as the nation’s second-highest court, just ruled by a 9-to-3 margin that Obama’s Patent and Trademark Office (PTO) cannot deny trademarks simply because it considers them subjectively offensive. The decision didn’t involve the Redskins as a direct party, but rather a musical group named “The Slants.” The band’s members sought to trademark their name, but the PTO denied their application on the basis that Asian-Americans might consider the term offensive. (It should be noted that the band members themselves are Asian-American.) The PTO based its denial on the 1946 Lanham Act, which established the current federal system for registering and protecting trademarks — things like brand names, slogans or logos — so that “the holder of a federal trademark has a right to exclusive nationwide use of that mark where there was no prior use by others.” Section 2(a) of that statute broadly prohibits registration of anything that “[c]onsists 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, or bring them into contempt or disrepute.” The Court, however, vacated the PTO’s denial and went so far as to rule the statutory provision on which it relied unconstitutional: “The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional.”
Source: New Court Defeat for Obama Means Win for Redskins, Free Speech and Intellectual Property Rights
