Tuesday, June 20th, 2017
An ethnic-minority rock band just saved the REDSKINS federal trademark registrations from cancellation. Ironic, no?
Whenever people hear about the recent Supreme Court case concerning the Asian rock band The Slants, they think about the Washington Redskins, because that case saved the trademark registrations for the REDSKINS name.
Not me. I think of the classic Mel Brooks movie The Producers. That movie showed how you can get rich and famous by being offensive when you otherwise might not be good enough to be noticed at all.
In the movie (and Broadway play, and movie remake), a failing Broadway producer gets a brilliant idea from his accountant: Produce a musical that is so offensive that it will close after the first night. Then the producer can get rich because (in the movie’s logic) he can keep all of the cash invested in the musical without incurring the expense of continuing to stage it.
The most offensive song in the intentionally distasteful musical is “Springtime for Hitler.” It celebrates the rise of Hitler and Nazi Germany in a campy, schmaltzy way. Only a Jewish comedic genius such as Mel Brooks could make such a movie only 22 years after the end of World War II.
(Viewing tip: The original movie, starring Zero Mostel and Gene Wilder, is not a musical. The movie was turned into a musical as a Broadway play. The movie remake is a musical and stars the same guys as the Broadway play, Nathan Lane and Matthew Broderick.)
The Slants make me think of The Producers. It’s a rock band composed of Asian men. They deliberately chose a name derogatory to Asians purportedly to “reclaim” the name. I think they were just trying to get attention.
They got a lot of attention when they applied to federally register the name of their band as a trademark. The U.S. Patent and Trademark Office (“USPTO”) denied the registration application because the federal trademark statute prohibits registering a trademark that is disparaging to an individual or group.
The band appealed to a federal appeals court and eventually won on First Amendment grounds. The USPTO then appealed that case to the Supreme Court
By now you have certainly heard that the band won in the Supreme Court. That court held it violates the freedom of speech clause of the First Amendment for the USPTO to refuse to register a trademark because it disparages a person or group. The court said this prohibition is unconstitutional viewpoint discrimination. If you can praise a group with a registered trademark, the First Amendment requires that you be permitted to disparage that group with one also.
This decision made headlines only because it saved the REDSKINS federal trademark registrations. The USPTO had issued an order cancelling those registrations, finding that the name REDSKINS was disparaging to American Indians.
The Redskins appealed to a Virginia federal trial court, making the same constitutional arguments The Slants did. The Virginia trial court rejected those arguments. The Redskins were in the process of appealing to the U.S. Fourth Circuit Court of Appeals, which is based in Richmond.
The Supreme Court case made further litigation in the Redskins case unnecessary. The Fourth Circuit now has no choice but to grant victory to the Redskins, which will now
keep its trademark registrations. Those registrations are important to the efforts of the NFL to fight the production of counterfeit REDSKINS goods, such as jerseys and other fan merchandise.
It is almost certain the Supreme Court opinion also now makes it legal to obtain trademark registrations on dirty words as the names of goods or services. For example, as of this writing, there are 68 pending applications to register trademarks that contain the F word. Unless those applications have other problems, they will become federally registered trademarks.
Back to The Slants. If it weren’t for the trademark case concerning that band, would you ever have heard of it? One of the band’s songs has over 350,000 hits on YouTube. Would the group have such notoriety without its provocative name? I doubt it.
In The Producers, Ulla (played in the newer movie by the stunning Uma Thurman) sings the rewards of being salacious in “When You Got It, Flaunt It.” She croons “People say that being prim is proper, but every showgirl knows that prim will stop her.”
The Slants got famous from their offensive name and trademark fight. They’ll flaunt that right to the bank.
Written on June 19, 2017
by John B. Farmer
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