Review of Intellectual Property Law Blog

Unbreakable First Amendment: SCOTUS Says No to the Disparagement Clause

By Gina Chereck, J.D. Candidate 2018 on Wednesday, July 5th, 2017
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Gina Chereck

Season 3 of the Netflix series, “Unbreakable Kimmy Schmidt,” features a story arc about the Native American socialite, Jacqueline Voorhees, taking down the Washington Redskins.[1]  In the series, Voorhees and her boyfriend (a fictional Snyder) devise a plan to get the Redskins organization to change its name.[2]  While the series’ writers, the U.S. Patent and Trademark Office (USPTO), and the Department of Justice find the name offensive, there is no longer a clear trademark route to accomplish their goal of forcing the Redskins to change their name –  as of June 19, 2017, the Lanham Act’s disparagement clause is no longer on their side.

In a unanimous decision in Matal v. Tam, the U.S. Supreme Court held that “[t]he disparagement clause of the Lanham Act violates the First Amendment’s free speech clause.”[3]  In his opinion, “Justice Samuel A. Alito Jr. wrote…‘[the disparagement clause] offends a bedrock First Amendment principle: [s]peech may not be banned on the ground that it expresses ideas that offend.’”[4]  The case centered on an Asian-American rock band called the Slants, which tried to register its band’s name with the USPTO in 2011.  The USPTO turned down their trademark application under the Lanham Act’s disparagement clause.[5]

In response to the Tam decision, the Department of Justice is giving up its fight against the Redskins.[6]  What will the writers of ‘Unbreakable Kimmy Schmidt’ do with their storyline?  Looks like we’ll have to wait until Season 4!

To learn more about the Lanham Act and the Tam case that started this all, check out Paul Sanders’ comment: “It’s My Mark, I Can Offend If I Want To! The Waning of the Government’s Power to Protect its Citizens from Widespread Discriminatory Marks.”

[1] See Emily Yahir, ‘Unbreakable Kimmy Schmidt’ continues its takedown of the Washington Redskins name, Washington Post, May 19, 2017, https://www.washingtonpost.com/news/arts-and-entertainment/wp/2017/05/19/unbreakable-kimmy-schmidt-continues-its-takedown-of-the-washington-redskins-name/?utm_term=.cb05f0c86489.

[2] Id.

[3] Matel v. Tam, Supreme Court of the United States Blog, June 19, 2017, http://www.scotusblog.com/case-files/cases/lee-v-tam/.

[4] Robert Barnes, Supreme Court: Rejecting trademarks that ‘disparage’ others violates the First Amendment, Washington Post, June 19, 2017, https://www.washingtonpost.com/politics/courts_law/supreme-court-rejecting-trademarks-that-disparage-others-violates-the-first-amendment/2017/06/19/26a33ffa-23b3-11e7-a1b3-faff0034e2de_story.html?utm_term=.f5281997e872.

[5] Id.

[6] Justice Department gives up fight against Redskins trademarks, ESPN, June 30, 2017, http://www.espn.com/nfl/story/_/id/19768940/justice-department-gives-washington-redskins-name-fight.

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