The trademark appeal of the Asian-American rock band, The Slants has been re-instated after a Federal Circuit appellate panel vacated an earlier ruling denying the band’s right to its name.
The band has claimed its name was not a slur and is fighting a long-standing court interpretation that disparaging words are not permitted for trademark.
Monday’s court ruling allows the Slants to come before the full Federal Circuit court but with a different argument. Instead of procedural issues, the crux of the band’s case, the court has limited the issue to a single question: Does the bar on registration of disparaging names violate the First Amendment?
“Either it means that the court wishes to really examine how the First Amendment should apply to trademark litigation, or they wish to rule once and for all that this has nothing to do with freedom of speech,” Simon Tam, the founder of the band, told NBC News. “It's definitely an exciting, new development, as it means we'll have an opportunity to really examine the meaning of free speech in this country for businesses, artists, and activists.”
But if the court rules for the Slants and that the current interpretation is a violation of the First Amendment it it could have huge repercussions in a concurrent battle in the fight over the Washington NFL team’s use of the “Redskins” name.
“While the case is filed in a different court—the Eastern District of Virginia—a finding by the Federal Circuit that the disparagement provision…violates the constitution could have a domino effect in other courts,” Megan Carpenter, Director of the Center for Law and Intellectual Property at Texas A&M School of Law, said. She added that for over 30 years the constitutionality of the disparagement provision has held. “If the Federal Circuit decides now that the provision is unconstitutional, that would likely have a big impact on litigation elsewhere.”