Back on June 19, a unanimous Supreme Court struck down a law prohibiting the registering of “disparaging” trademarks, in a case dealing with an Asian-American band called “The Slants.” The ruling also ended the appeal filed by the Washington Redskins which had been denied a trademark for their name under the same provision. The Court struck down the law as violating the free speech rights of the applicants. It also ruled that by providing the registration for the trademark, the US government was not condoning or sponsoring the mark.
The decision has opened the floodgates for other filers to seek trademark protection for racially offensive trademarks. For example, on the very day the Slants ruling came out Marlon Andrews of Washington DC has field for a trademark to sell T-Shirts and other articles of clothing with the phrase “Nigger Please” emblazoned on them. Other applications that would have been previously denied under the regulation include an application for clothing with the Nazi swastika on them. Reuters reports that nine applications for use of “Nigga” have been filed mostly by a company called “Snowflake Enterprises” which plans on using the word on alcoholic and non-alcoholic beverages as well as on all sorts of clothing. Trademarks of course, often lead to litigation, so it won’t be long until we see “Nigger Please, Inc. v. Nigga Please, LTD” or something of the sort before that Trademark Appeals Board.
The one good thing to come out of this ruling is that it may perhaps educate folks that hate speech is still protected speech. Too often I hear TV pundits talking about the right to restrict speech on college campuses because the banned speech is “hate speech.” Well with the Supreme Court of the United States saying that the USPTO must allow companies to trademark racial slurs on First Amendment grounds, clearly then an actual speaker offering racist lectures on college campuses is also protected under the First Amendment provided he/she is not directly inciting violence (a valid First Amendment exception). Hopefully the marketplace will straighten this out and these products won’t last too long on the shelves.