United States Supreme Court BuildingThe U.S. Supreme Court ruled unanimously on June 19, 2017 that the Lanham Act’s disparagement clause prohibiting federal registration of “disparaging” trademarks unconstitutionally limits free speech in a case involving a band named “The Slants.” The near-term effect on trademark applicants, however, is in question due to other viewpoint based prohibitions that were not ruled upon.

In this 8-0 decision, the U.S. Supreme Court found in favor of Simon Tam, the front man for Asian-American rock band The Slants, who had been denied a trademark because the U.S. Patent and Trademark Office deemed the name disparaging to people of Asian descent. The rock band challenged the denial as a violation of free speech rights under the First Amendment.

“We now hold that this provision violates the Free Speech Clause of the First Amendment,” wrote Justice Samuel Alito. “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

While all eight justices who considered the case found the Lanham Act’s disparagement clause unconstitutional, they were divided on the reasoning and appropriate legal standards. Justice Neil Gorsuch did not participate in the decision because he joined the court after arguments were heard in the case.

Justice Alito, writing for four of the justices, further held that a federal trademark registration (and similar registration schemes, including for copyrights and patents) is not a government subsidy which might shield the government from expressing a particular viewpoint. Justice Alito also held, without deciding the proper level of scrutiny, that the disparagement clause is unconstitutional even if trademarks are considered commercial speech because the clause cannot withstand relaxed scrutiny.

Justice Kennedy, also writing for four of the justices, joined the Court’s opinion in part and concurred in the judgment. He held that “[a] law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.”

Finally, Justice Thomas concurred with the Court’s opinion, except to hold that strict scrutiny is appropriate where the “government seeks to restrict truthful speech in order to suppress the ideas it conveys . . . whether or not the speech in question may be characterized as ‘commercial.'”

The ruling is expected to have an impact on other trademarks many may consider disparaging or offensive, such as the Washington Redskins’ trademarks. The Washington Redskins have been involved in a trademark dispute over its team name, which many consider a slur toward Native Americans. The Washington Redskins dispute was put on hold pending the outcome of this U.S. Supreme Court decision.

The ruling may also lead to a number of new trademark applications for “disparaging” trademarks. Trademark applicants that were previously denied registration based on the disparagement clause, in particular, may wish to consider re-filing.

The ruling’s ultimate impact, however, is uncertain in the near-term because it did not address other parts of trademark law that ban arguably similar viewpoint based prohibitions. For example, the Lanham Act still bans registration of “immoral” and “scandalous” trademarks. It is unclear whether the U.S. Patent and Trademark Office will continue to apply these other prohibitions, which could effectively serve to block many of the same trademark registrations previously blocked by the disparagement clause. But even if the “immoral” and “scandalous” prohibitions continue to be enforced in the near-term, it is likely only a matter of time before those prohibitions are similarly litigated.