WASHINGTON, Sept 29 The U.S. Supreme Court on Thursday agreed to hear a challenge to a NY state law barring retailers from imposing surcharges on customers who make purchases with a credit card rather than cash.
Advertisement
The Supreme Court has not yet taken any action in the higher profile dispute over the Washington REDSKINS trademark, which is also at issue under the same Section 2 (a) provision. As such, it is an exercise of free speech, and therefore the Act’s disparagement provision is facially invalid under the Free Speech Clause of the First Amendment of the U. S. Constitution.
Through editorials, the band’s website, and even a TED Talk, Tam has maintained that his band ― a self-described “Chinatown dance rock” outfit that happens to be made up of all Asian-American members ― exists to break down racial stereotypes about their ethnicity.
In the band’s case, a divided federal appeals court in Washington, D.C., struck down a portion of the 70-year-old federal trademark law. The USPTO, unwilling to register the trademark despite the appellate decision, sought review at the Supreme Court. However, a federal law blocks the U.S. Patent and Trademark Office from registering trademarks that may “disparage” someone or their “institutions, beliefs, or national symbols”.
The federal appeals court in NY upheld the state’s law. Lawyers for the team asked the Supreme Court to take up their case at the same time as “The Slants” case. Though it might lead to more hateful trademarks in the future, the court said, the First Amendment forbids government from banning offensive speech.
More generally, the court said a year ago in Reed v. Town of Gilbert that laws “that target speech based on its communicative content” were “presumptively unconstitutional”. The team’s trademark was canceled in 2014 after decades of use.
In December previous year, an en banc Federal Circuit ruled that a decision by the US Patent and Trademark Office (USPTO) to deny The Slants a trademark for its name violated its First Amendment rights.
The justices will decide if an appeals court was correct in declaring the federal law unconstitutional under the First Amendment because it allows trademarks considered disparaging to be rejected.
Advertisement
You may not have heard of the Slants, an Asian American rock band from Portland, Ore., whose name was chosen as an ironic comment on an ethnic slur. But 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”. The law “does not prohibit any speech, proscribe any conduct or restrict the use of any trademark”, the department said in its appeal. Its eventual decision must adhere to the Supreme Court’s judgment on the constitutionality of the law in question.
