The Slants win! The Slants win!

Ok, so I’m not actually that ecstatic, if at all. My response is more tepid than anything.

I am, however, surprised the case came out the way that it did with the reasoning that was detailed in the opinion. I was convinced after listening to and reading oral argument that the Supremes would not consider trademark registration standard free speech. I was wrong.

The second paragraph sums up the holding: “speech may not be banned on the ground that it expresses ideas that offend.” It seemed clear to the Justices that denial of a trademark registration equates to speech restriction. I don’t think it’s that clear.

So let’s discuss. No speech was being banned prior to this case. Registration of speech, insofar as trademarks are speech, which I’m not convinced of, was banned. Acknowledging that something is acceptable is very different from banning it. Trademark Registration is essentially an acknowledgement of one’s use and rights.

(I understand the argument that denial of registration is an incentive to use different language, which in turn is a form of speech restriction. However, that argument is simply not directly analogous to other speech regulation. Again, the Government is not telling anyone they cannot use the language. I understand that the law requires us to look for syllogisms in our reasoning, but sometimes they just aren’t there.)

As Justice Alito put it, “without a federal registration, a valid trademark may still be used in commerce. And an unregistered trademark can be enforced against would-be infringers in several ways.” Many people opposed to the Tam decision, or at least not on the side of it, point to this concept as a reason for why the disparagement clause should not have been struck down. Disparaging trademarks can still be used and enforced, even without registration, is the argument they make. I’m not so sure I agree.

(I know, I know, I’m arguing both sides. So sue me. (Please don’t))

For any unregistered mark for which the owner wants to sue for infringement, the owner must first prove they have rights in the mark. I would not be at all surprised for a judge to decide that one does not have rights in a disparaging mark (prior to Tam), just as one does not have rights in generic marks, marks with a government seal, etc. A judge could determine that, categorically, a person cannot have rights in disparaging marks. After all, the Lanham Act doesn’t (read: didn’t) let you register them.

The good news for Tam and the Slants is the court ruled in their favor, and so they won’t have to go through that process.

Ultimately, I don’t think denying registration is equal to banning speech. And for that reason, maybe the Court shouldn’t have stepped in and tossed the clause. Maybe this is all the province of Congress and the Court was wrong to decide it. I’m not sure.

And for those yelling about social justice and free speech, remember, this is about commerce. It’s about the marketplace of goods and services. Not the marketplace of ideas (or however Holmes put it) and the right to say whatever you want. Trademarks are not meant to be about expression—even if people use them that way. They are about identifying the source of a good or service. If you want your trademark to be expressive, that is your decision. No one is stopping you. But that doesn’t mean (up until now) that the government needs to acknowledge it as a proper commercial source identifier.

For me, deciding whether the disparagement clause was unconstitutional was not cut and dried, as the opinion makes it seem. I’m not sure how the Justices came out 8-0 on this one. But maybe that says more about the esoteric nature of trademark law than it does any semblance of a clear answer to the question presented.

Now on to scandalous marks and Brunetti…