Last week, the U.S. Court of Appeals for the Federal Circuit affirmed the PTO’s trademark denial of “The Slants,” agreeing that the band name could be perceived as offensive to Asian groups and individuals. In the very same ruling, however, Judge Moore included a section entitled “additional views” in which she explored the question of whether such a far-reaching legal power—banning registration of marks with potentially disparaging content—should be part of the PTO’s role, or if it perhaps violates the First Amendment. In the words of Judge Moore, “It is time for this Court to revisit McGinley’s holding on the constitutionality of § 2(a) of the Lanham Act. Under § 2(a), the PTO may refuse to register immoral, scandalous, or disparaging marks." In light of the fact that the usual three-person panel of the Federal Circuit would not have sufficient power to overturn the legal precedent, the Court has made the rare decision to sit as one and hear the case “en banc,” with all active Circuit judges participating.
Over the years, the Lanham Act has been used inconsistently and it is not objectively clear why some potentially offensive marks were disallowed, while other seemingly similar marks were registered successfully. The Slants’ frontman Tam hopes that this time the outcome will fall in their favor, thereby advancing his goal of re-appropriating stereotypical terms and empowering minority groups. Many people are following the case, as they see this as relevant to the ongoing Washington Redskins trademark case, and an important discussion about freedom of speech. The status quo in the Redskins case is based on the argument that the team name, logo, mascot, and identity are disparaging to Native American groups and individuals. If The Slants’ en banc case overturns the McGinley precedent, the Redskins’ pending appeal would likely be influenced as well, and they might have a better chance of reclaiming ownership of their federal trademark registrations.