The Federal Circuit gives victory to The Slants.
Slants frontman Simon Tam has scored a big victory at a federal appeals court in his challenge to the U.S. Patent & Trademark Office's refusal of a trademark registration.
On Tuesday, the United States Court of Appeals for the Federal Circuit accepted Tam's contention that the USPTO's "Slants" refusal, done pursuant to a law against "scandalous, immoral, or disparaging marks," constitutes a violation of First Amendment rights. The decision provides massive encouragement to those like the Washington Redskins who are fighting on similar grounds. In fact, unless the U.S. Supreme Court decides to weigh in, it seems highly likely that the USPTO's decision to register the "Washington Redskins" will also not survive constitutional scrutiny.
In attempting to register "The Slants," Tam, an Asian-American, said he was attempting to "take ownership" of Asian stereotypes. After the USPTO refused to register, he went to an appeals court and was handed a loss thanks to a prior 1981 appellate ruling in McGinley that held that "the PTO's refusal to register appellant's mark does not affect his right to use it."