Should the First Amendment protect these types of trademarks? Why or why not?

Trademark Protection

Discussion Question:

Should the USPTO grant trademark protection for potentially disparaging marks?

Discussion Purpose:

Discuss the ethical considerations companies must wade through when deciding on a name that they may wish to trademark.

Discussion Background

In July of 2020, the Washington, D.C. NFL team announced that it would be changing its name under pressure from corporate sponsors and fans.  The team’s ownership decided to go ahead with this change, even after the US Supreme Court (SCOTUS) decided in 2017 that the US Patent and Trademark Office (USPTO) must grant the trademark for the use of the “Redskins” name when it held that the USPTO must grant trademark protection for the name of a Portland-based band called “The Slants.”

Specifically, the disparagement clause within the Lanham Act (trademark statute) “prohibits any trademark that could ‘disparage … or bring … into contemp[t] or disrepute’ any ‘persons, living or dead,’ as the court states.”

In deciding the case, the Supreme Court held that “jfvvv]]h The disparagement clause violates the First Amendment’s Free Speech Clause,” Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government‘s contention, trademarks are private, not government speech.”

Discussion Requirements

  1. Read this article about the SCOTUS opinion on The Slants case.(Links to an external site.)
  2. Discussing the following:
    • Do you think the court make the right decision? Why or why not?
    • Should the First Amendment protect these types of trademarks? Why or why not?
    • What if the new Seattle NHL team wanted to use the “Chief Sealth” name (a name with historic Seattle roots)?  Should a new team be permitted to use a brand that includes the “N”-word? Why or why not?
  3. Double spaced with 2-3 pages
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