How did a Asia-American dance-rock band save “Money in Speech” and Citizens United – PB/TK
Thanks To Asian-Americans, Supreme Court Reaffirms Core Of Citizens United: Money Is Speech – By Kevin LeRoy / June 27 2017
Recently, the Supreme Court decided Matal v. Tam, a trademark case involving a “dance-rock bank” (the Court’s words, not mine) named “The Slants.” The band submitted a trademark application for its name to the Patent and Trademark Office, which denied it because the name was insulting, in violation of a decades-old provision of trademark law. That provision is aptly called the “the disparagement clause,” or, as Justice Alito put it, the “happy-talk clause.” The band then sued the PTO, and ultimately the Supreme Court decided that the disparagement clause violated the First Amendment, which protects happy and non-happy talk alike.
While the bottom-line conclusion of Matal is an important trademark-law development, it’s the Court’s broader discussion of the expressive value of trademarks that’d I’d like to focus on. The Court’s discussion provides important support for the long-standing (and long-disputed) argument that “money is speech.”
Trademarks Have First Amendment Repercussions
Matal correctly states that “trademarks often have an expressive content” along with their commercial purpose, which is to identify the company that made a particular good (or the band that recorded a particular song). While “federal law regulates trademarks to promote fair and orderly interstate commerce,” trademarks “do not simply identify the source of a product or service.” They “go on to say something more, either about the product or service or some broader issue.” The Court gives just some of the countless examples of expression via trademark: a pro-life group uses “Abolish Abortion” as its mark, and Planned Parenthood has trademarked “I Stand With Planned Parenthood”; Anti-capitalists have reserved “Capitalism Is Not Moral, Not Fair, Not Freedom,” while Pro-capitalists don “Capitalism Ensuring Innovation.” (Those latter two groups, at least, need better marketing divisions, but you get the point.) And here’s another timely example: many companies incorporate rainbows in their logos during June. Expressive, no doubt—yet still easily furthering trademark’s commercial purpose.
Continue to thefederalist.com article: http://thefederalist.com/2017/06/27/thanks-asian-americans-supreme-court-reaffirms-core-citizens-united-money-speech/
