Ruling could sway Redskins case

WASHINGTON - A majority of the Supreme Court seemed highly skeptical Wednesday that the federal government can refuse to register all trademarks that may be disparaging, casting it as the government improperly taking sides in free speech disputes.

Justice Elena Kagan said that a government program that allowed only positive speech and denied negatives speech would be a 'fairly classic” case of viewpoint discrimination, in which the government cannot engage.

The court was considering the case of an Asian-American band called the Slants, whose founder was denied trademark registration.

The trademark office in 2011 said registering the trademark would violate a part of the 1946 Lanham Trademark Act that prohibits registration of a trademark that 'may disparage ...

persons living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute.”

The office said the name likely was to disparage a significant number of Asian-Americans. But founder Simon Tam said the point of the band's name is just the opposite - an attempt to reclaim a slur and use it 'as a badge of pride.”

Tam lost in the first rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendment's guarantee of free speech.

The government may not 'penalize private speech merely because it disapproves of the message it conveys,” a majority of the court found.

The outcome of the case will likely impact the legal case of the Washington Redskins, whose trademark registration was revoked in 2014 under the same disparagement clause.

The Redskins filed an amicus brief supporting the Slants.

The team's trademark registration was canceled in 2014 after decades of use. The team asked a district judge in Virginia to overturn the cancellation and was refused.

The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, pending the Supreme Court's decision in the Slants case.