Freedom of Speech vs. Offensive Trademarks - The Supreme Court Settles Things

For years the US Patent and Trademark Office would not register a trademark found to be disparaging.  This has resulted in the cancellation or lack of registration of many marks.  Famously the Washington Redskins' trademark was canceled for being disparaging.  It's been debatable whether this restriction violates the First Amendment.  In addition, many have wondered how does one determine whether something is offensive and whether this should be handled by a government agency.  Surely, the line of what is socially offensive has moved a lot over the years.  Morally, the restriction has been justified by not sanctioning offensive speech with the right to restrict others with a bundle of trademark rights.  The Supreme Court has now settled this debate finding that disparaging trademarks can now be registered. The New York Times has a good report of the case.  The Court felt the disparagement was too broad: “It is not an anti-discrimination clause; it is a happy-talk clause."  In addition, some justices found the clause permitted viewpoint discrimination: “To permit viewpoint discrimination in this context is to permit Government censorship.”  Following this case, a series of registrants are attempting to register marks that previously would have been rejected (see here, here, and here). This case is an interesting confluence of IP, constitutional law, and morality that can be debated for some time.