Matal v. Tam — A Victory for the Slants, A Touchdown for the Redskins, But an Ambiguous Journey for the First Amendment and Trademark Law

Abstract

Since 1946, Section 2(a) of the Lanham Act, the law governing trademarks, prohibited the registration of trademarks deemed “immoral, deceptive, or scandalous;” or those which may “disparage” individuals. This provision was the subject of a challenge by an Asian-American dance-rock band named “The Slants” after the trademark examiner refused to register the mark because it was deemed “disparaging” to Asians. Tam, a member of the group, challenged the decision, primarily on First Amendment grounds, and the Supreme Court, in several opinions which produced a unanimous result, concluded that the provision unconstitutionally barred the registration. What was a major victory for Tam raises a number of issues which will be explored in this article. The first involves the rights of Native Americans to challenge names and logos of sports teams many deem disparaging. Although Tam limits the Section 2(a) option for Native Americans, the article asks whether there are there other ways to challenge such marks. The second issue involves the dissection of the “unanimous” opinion by the Supreme Court, which was really a series of concurrences cobbled together to produce an inconclusive whole. Because of this split, the article concludes that the court missed an opportunity to create a more definitive First Amendment standard and did not resolve the issue of whether there should be room for such a provision for trademarks that are entirely commercial and those which may have extra-commercial social and political significance.

Keywords: Trademarks, First Amendment, Sports, Native Americans, Commercial Speech