Free Speech & Trademark: Protect your voice and your brand

Trademarks are essentially the personal identification for Companies and their products.  Registering your trademark protects it from anyone that attempts to profit from your marketing and product development. But what happens if your trademark registration is denied because it is offensive, insulting, or vulgar? Can the government deny registration on a company’s artistic edge?

Up until now, the United States Patent and Trademark Office (“USPTO”) has had full discretion in denying trademarks they deem offensive, insulting, or vulgar. However, in a recent Supreme Court decision (In Re Tam, 808 F.3d 1321(2015)), an Asian American rock group chose the name “The Slants” in an effort to alter the derogatory implication of this slang word towards Asians. The USPTO denied the trademark declaring the name to be disparaging and offensive. However, the Supreme Court found that denying registration of an offensive trademark violated the Free Speech Clause of the First Amendment, and reversed the USPTO’s decision.

This decision will open the door for creative and potentially offensive trademark registrations.  Companies in expressive fields such as fashion, art, music, and design will no longer be prohibited from protecting their brands. You can now express and protect your brand, even if it is deemed offensive as you’re protected under the Free Speech Clause of the First Amendment.