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PRESS RELEASE | NAPABA CONCERNED ABOUT IMPACT OF SUPREME COURT TRADEMARK RULING
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News Release


For Immediate Release
June 19, 2017

                                                    For More Information, Contact:
                                                    Brett Schuster, Communications Manager
                                                    bschuster@napaba.org, 202-775-9555

NAPABA Concerned about Impact of Supreme Court Trademark Ruling

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WASHINGTON — The National Asian Pacific American Bar Association (NAPABA) is concerned about the impact to diverse communities from today’s ruling by the United States Supreme Court that the provision of federal trademark law that prevents “disparaging” terms from being trademarked is unconstitutional. The decision in Matal v. Tam (formerly Lee v. Tam) allows The Slants, the Asian American rock band that challenged the provision, and other groups — including the Washington football team — to register exclusive federal trademarks using racial slurs.

“The ability of any business or individual to have the exclusive ability to profit from racial slurs using a federal trademark, no matter their intent, has harmful consequences,” said NAPABA President Cyndie M. Chang. “As current events remind us, Asian Pacific Americans and other communities are all too familiar with the damage caused by racial slurs and epithets. While communities must have the ability to reclaim historically disparaging terms used against them and exercise free speech, today’s decision does not advance those objectives by granting exclusive ownership of a term in commercial settings.”

In Lee v. Tam, the Court considered whether Simon Shiao Tam’s application to trademark the name of his band, The Slants, was properly rejected by the U.S. Patent and Trademark Office under Section 2(a) of the Lanham Act, which permits the denial of trademark registration of “disparaging” marks. Tam, who asserts the band’s name is an effort to reappropriate the slur, challenged the validity of the statute, not only as applicable to his case but for all trademarks. The Federal Circuit below ruled for Tam, finding Section 2(a) unconstitutional. The Supreme Court upheld that decision. In an opinion written by Justice Samuel Alito, the Court concluded that the disparagement provision violates the Free Speech Clause of the First Amendment and constitutes discrimination based on viewpoint.

NAPABA joined the Hispanic National Bar Association, the National Bar Association, the National Native American Bar Association, the National LGBT Bar Association and the Fred T. Korematsu Center for Law and Equality in filing an amicus brief in the U.S. Supreme Court supporting the constitutionality of the rules prohibiting the registration of disparaging trademarks.

The national affinity bar brief addressed the facial challenge brought against Section 2(a), arguing that Congress has the ability to regulate commercial speech, including trademarks. Section 2(a) is not a ban on either reclamation of terms or use under the common law, but rather is a mechanism for dealing with the harmful effects of racial, national origin and religious discrimination on interstate commerce.

Finally, the brief discussed the impact of the Court’s ruling on the ability of applicants to trademark slurs offensive to diverse communities, including “Redskins,” whose name as the Washington football team is pending a legal challenge by Native American plaintiffs that will likely be impaired by today’s decision. 

NAPABA previously filed an amicus brief in this case when it was before the Federal Circuit. NAPABA also joined the National Native American Bar Association and the Korematsu Center in an earlier-filed amicus brief in the related case involving the Washington football team, Blackhorse v. Pro-Football Inc., before the Fourth Circuit. 

For more information, the media may contact Brett Schuster, NAPABA communications manager, at 202-775-9555 or bschuster@napaba.org.


The National Asian Pacific American Bar Association (NAPABA) is the national association of Asian Pacific American attorneys, judges, law professors, and law students. NAPABA represents the interests of almost 50,000 attorneys and more than 80 national, state, and local Asian Pacific American bar associations. Its members include solo practitioners, large firm lawyers, corporate counsel, legal services and non-profit attorneys, and lawyers serving at all levels of government.

NAPABA continues to be a leader in addressing civil rights issues confronting Asian Pacific American communities. Through its national network of committees and affiliates, NAPABA provides a strong voice for increased diversity of the federal and state judiciaries, advocates for equal opportunity in the workplace, works to eliminate hate crimes and anti-immigrant sentiment, and promotes the professional development of people of color in the legal profession.

To learn more about NAPABA, visit www.napaba.org, like us on Facebook, and follow us on Twitter (@NAPABA).