Holding that the First Amendment right to free speech applies to trademarks even if the marks are offensive, on June 19, 2017 the Supreme Court held that the so-called “disparagement clause” of the Lanham Act was unconstitutional.
The Act permitted the United States to deny a trademark that disparaged any person living or dead. An Asian-American musician applied for a trademark for his band name. This band’s name is derogatory towards Asians and the patent office rejected the application. The band chose the derogatory name as a way of protesting discrimination against Asians.
The "Disparagement Clause"
The government may deny a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols…”
The Supreme Court found that the disparagement clause was unconstitutional because although the government understandably wished to promote racial tolerance, the government cannot ban speech simply because the government finds certain ideas offensive.