Tuesday, 20 June 2017

Darren Olivier

'Fu ck You!' it's registrable in the US

Yesterday the Supreme Court in the United States ruled that the law prohibiting the registration of offensive and disparaging trade marks is against free speech rights. This case has interesting implications for all trade mark registries, especially those in countries or regions where constitutional rights exist. It also effectively puts to bed the REDSKINS trade mark dispute in the United States.
The case involved the attempt to register the mark SLANTS by Asian-American band member Simon Tam. It was rejected by the USPTO, the appeal court found that to be unconstitutional and the Supreme Court has now agreed. Prof Wim Alberts provides an excellent summary of facts, and the implications for the REDSKINS dispute, in this Afro-IP post here.
Like many others Prof Alberts predicted that the US Supreme Court would find reason to disagree with the appeal court and so this decision comes as a surprise to many.
The judges 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,"
"Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate," 
In the US, as in most countries, there are laws preventing the registration of offensive trade marks. It is not without controversy as these US cases illustrate. In South Africa, the South African registry ruled against the registration of BUM for shirts in 1970 on such grounds and the irritation of US counsel makes amusing reading. He wrote that he:
"fear(s) very strongly for the intellectual level of (the) South Afrikaner" and describes the Registrar at the time as having "not yet climbed out of the slime in which he was spawned..". You can read it in full here.
Just as there would be no question that BUM would be registrable in South Africa today, one questions whether the Government, even in  contemporary South Africa, should or is able to be the purveyor of moral codes on communication. It's as controversial as it is probably, impossible.
My apologies for the heading but you get my point (and it's also not as offensive as it could have been).

Darren Olivier

Darren Olivier

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