Patent Office Decision: Telling it Like it Is

Daily Business Review
May 10, 2016

By Jose Sariego

We have become an uncivil society. Politicians hurl personal insults at opponents in nationally televised debates. Reality stars dish out juicy gossip about other stars behind their backs. Competition participants sabotage their competitors and openly brag about it.

Often, this incivility is justified as simply "telling it like it is." But since when has telling it like it is been a virtue? Well, since about 1791, when the First Amendment and the rest of the Bill of Rights were passed by Congress and ratified by the states.

You see, in America, saying or writing nasty things about other people has always been a virtue. (George Washington was portrayed as an ass in early political cartoons, Abraham Lincoln often as an ape.) Even untrue statements of fact, not made recklessly, are protected by the First Amendment when concerning public officials and public figures. As the U.S. Supreme Court has noted, "It is a prized American privilege to speak one's mind, although not always with perfectly good taste, on all public institutions."

Freedom to insult is one of the defining principles of our free society. As Judge Learned Hand observed: "To many this is, and always will be, folly; but we have staked upon it our all." It's not a universally accepted concept — try running around China saying nasty things about Chinese President Xi Jinping; you and your relatives are likely to be hunted down and jailed, as happened earlier after a critical letter calling on him to step down was published. Not even the British, who conveniently left much of their jurisprudence behind when they were unceremoniously evicted, have a homologue to the First Amendment. (This is why insulted movie stars and other public figures routinely sue for libel in the U.K. rather than the U.S.)

But until recently, there was a refuge from all this incivility. In the musty corridors of the U.S. Patent and Trademark Office, government guardians of civility have for decades shielded our tender eyes and ears from all manner of immoral, scandalous, disparaging, contemptuous or disreputable trademarks and trade names. This is because Congress, notwithstanding the barrage of offensive speech that regularly spews forth from virtually every other media outlet, directed the USPTO in Section 2(a) of the Lanham Act not to register any of the aforementioned offending marks.

Consequently, USPTO examiners have blocked such marks as HAVE YOU HEARD SATAN IS A REPUBLICAN (but paradoxically registered THE DEVIL IS A DEMOCRAT, presumably because the devil is not offended by being labeled a Democrat.) In 2014, the USPTO determined that several trademarks owned by the Washington Redskins football team containing the word REDSKINS are offensive to Native Americans and should be canceled, a decision upheld by a federal district court in Virginia (the case is under appeal to the U.S. Supreme Court.)

It is certainly true that many of these marks are offensive to sensible and right-minded people. But is Section 2(a) consistent with the First Amendment? Well, a rock band composed of musicians of Asian descent who call themselves The Slants didn't think so, and the Appeals Court for the Federal Circuit in Washington has agreed.

In In re Tam, one Simon Shiao Tam named his band after a common slur against Asians apparently to make a statement about racial and cultural issues in America. According to the appeals court, "with his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech." The court added, "Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities. But the First Amendment protects even hurtful speech."

The impact of this ruling could be far-reaching. (The USPTO is appealing to the Supreme Court.) Washington Redskins owner Daniel Snyder is certainly popping champagne, now that his offensive trademark may constitute free speech (although what political or other nonoffensive statement the mark conveys is difficult to fathom?) But there have been hundreds of other marks rejected over the decades under Section 2(a) — Will all these now make a comeback? Will we suddenly be deluged with all manner of offensive logos in the name of free expression?

If we are, it wouldn't add much to the cacophony already assaulting our eyes and ears. If we can be bombarded daily with offensive vitriol by politicians, reality stars and talk show commentators, why can't we display the same offensive messages on our T-shirts and coffee mugs? (I am mindful that failure to register under the Lanham Act does not mean you cannot use an offensive logo or mark, but denial of a government benefit is every bit punishment of speech as direct prohibition.) After all, you can choose to ignore these statements or better yet — as the framers of the First Amendment envisioned — counter the offending language with truth. And if you are too sensitive for all of this noise, you can always move to any number of countries that would be only too glad to censor what you see and hear. But be careful what you ask for — the speech that they censor could be your own.

This article is reprinted with permission from Daily Business Review.

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