This week, the U.S. Supreme Court, in one decision, both struck a blow for civil liberties and free speech and opened the floodgates to the registration of subjectively offensive trademarks. Just ask the rock band “The Slants”, who prevailed in the case decided by the United States Supreme Court, and the NFL’s Washington Redskins’ defiant owner and dedicated fans, who will now see their marks registered, despite meanings that are offensive to large groups of Americans, in the name of free private or commercial speech.
How does this impact a prospective trademark registrant? Simply, the examiner must now ignore whether the mark is disparaging and evaluate the mark solely from a viewpoint neutral position. To see the practical impact of this, one need only look to the controversial mark “Redskins”. In June 2014, the USPTO cancelled the registration of the NFL’s Washington Redskins, determining that the “Redskins” mark was disparaging to Native Americans. However, this week’s ruling, barring application of the disparagement clause, would seem to open the door for the Washington Redskins to apply to register the “Redskins” mark anew, as well for others to seek registration of future marks that may well be disparaging to other persons, institutions, beliefs or national symbols.
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Jeffrey A. Cohen is a member of Flaster Greenberg’s Litigation, Intellectual Property, Corporate and Real Estate Practice Groups. He has been a trial attorney for more than 23 years, counseling and representing a diverse range of clients in matters related to commercial contracts, shareholder and partnership agreements, trademarks, copyrights, patents, including Hatch-Waxman, insurance coverage, franchise disputes and commercial construction.