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High court finds trademark disparagement clause unconstitutional

The United States Supreme Court recently handed down an 8-0 opinion that found the disparagement provision of the Lanham Act unconstitutional. The trademark news spread quickly in business circles as a potential new branding and marketing opportunity that may use racier or provocative trademarks.

The underlying case involved a petition that an Asian-American band filed in the hopes of obtaining a trademark for the name of their band, The Slants. The leader of the musical group, Simon Tam, says that the group wanted to reclaim the moniker that many find disparaging, and display the name as a "badge of pride," according to Reuters.

The Patent and Trademark Office had denied the band’s application for trademark protection, essentially finding the name is a disparaging racial slur. The rock musicians appealed the PTO decision, arguing that the PTO decision, and the underlying trademark statute, violated their First Amendment Rights. The nation’s highest court agreed in June.

The Ruling May Impact Niche Markets More Than Big Business

There is some evidence that smaller businesses have sought to trademark offensive content, especially in niche markets including in the entertainment industry, clothing industry (especially related to items such as T-shirts), according to Bloomberg BNA. With the recent boom in the microbrewery industry, some believe that specialty beers and wines may hit the market with racy, offensive or provocative names.

It is unclear how far-reaching the decision may become as most businesses are highly protective of their images and their own brands. While few of the largest companies in the United States are not expected to start seeking to trademark potentially offensive or disparaging content in light of the court’s ruling, some commentators believe that some room exists in many of today’s niche markets for provocative branding messages. 

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