Can I trademark an offensive name?

The United States Supreme Court recently ruled that you can trademark an offensive name. In doing so, the Court held that the disparagement clause of the Lanham Act violates the Free Speech Clause of the First Amendment. Prior to this decision, the United States Patent and Trademark Office could refuse to register any offensive or derogatory trademark.

Simon Tam, an Asian American and lead singer of the rock group “The Slants,” sought federal trademark registration of this name. The United States Patent and Trademark Office denied registration, finding the name to be offensive and derogatory to persons of Asian descent. The United States Patent and Trademark Office relied on the disparagement clause of the Lanham Act, which prevents disparagement of people and other things. See 15 U.S.C. § 1052(a).

On appeal, the United States Supreme Court ruled that the disparagement clause of the Lanham Act violates the Free Speech Clause of the First Amendment. The Court stated, “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” You can read the whole decision at Case No. 15–1293, Matal, Interim Director, United States Patent and Trademark Office v. Tam.

Even though you can now trademark an offensive name, the United States Patent and Trademark Office may still deny registration on other bases, including that the trademark is so similar to an already registered trademark that it is likely to cause confusion or deceive. Johnsen Law advises on trademarks and other intellectual property matters. To learn more, contact us now.