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Trademark Law

Rock band gets First Amendment rehearing in its quest for a trademark deemed disparaging

Photo courtesy of “The Slants”

An Asian American rock band denied a trademark for its name, “the Slants,” is getting an en banc rehearing by the U.S. Court of Appeals for the Federal Circuit.

The appeals court granted the rehearing on Monday without a request by the band, just a week after a Federal Circuit panel upheld denial of the trademark because it was disparaging, according to the Hollywood Reporter and the Recorder (sub. req.).

The en banc court will consider whether the Lanham Act’s ban on registration of disparaging trademarks violates the First Amendment. How Appealing links to the order (PDF) and additional coverage.

Judge Kimberly Moore, who wrote the majority opinion for the panel last week, also filed a separate opinion saying it is time for the Federal Circuit to re-examine the ban on disparaging marks in light of First Amendment concerns.

The en banc decision is expected to affect the legal battle over the name of Washington’s NFL team, which lost six trademarks in June 2014 because the name is disparaging to Native Americans.

If the Federal Circuit rules for the band, “the Redskins decision will be turned on its head,” Fish & Richardson trademark lawyer Kristen McCallion told Bloomberg News. “We might see a lot more applications for questionably disparaging marks.”