Matal v. Tam: “Disparaging” Trademarks & the First Amendment

Lee versus Tam is a case where Michelle Kwok
Lee, the director of the patent and trademark office—also known as the PTO—denied a
trademark application a trademark application of Mr. Simon Tam and his rock band, the Slants. All members of the Slants are Asian-Americans,
and they believe that they deserve to have the trademark because it is not an offensive
or disparaging term, but in fact, empowers them, as well as empowers their fans. The Patent and Trademark Office would say
that they have a two-part test when trying to decide whether a trademark application
is in fact disparaging or offensive. The first part is: What does the mark mean,
and in what context? And number two: if it is offensive or disparaging,
does it affect a substantial composite of the target population. The best argument that the government has
in this case is that they followed the law to the letter. They analyzed whether “the Slants” could
be considered offensive, in fact they claimed that they went to, and
that’s where they decided it was, in fact, offensive. They also found that several Asian-American
special interest groups declare that the Slants would also be offensive. Simon Tam, and his group the Slants, however,
claim that the PTO is infringing on their First Amendment Rights to call their group
and trademark their group whatever they want. They also claim that the PTO has been somewhat
arbitrary and capricious in granting out trademarks. For example, the PTO has approved trademarks
for rap groups, such as NWA, other groups, such as Dykes on Bikes, and groups that might
be called “Celebretards.” The questions of whether these names are offensive
or disparaging perhaps should not be left up to the government.

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One thought on “Matal v. Tam: “Disparaging” Trademarks & the First Amendment

  1. This is an interesting case because the proposed mark of "The Slants" in this particular case seems truly expressive as to the identity of the band. So it will be interesting to see if the Supreme Court finds restricting "offensive speech" is more important than promoting "expressive speech."

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