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Dykes On Bikes Cheers Supreme Court Ruling About "Disparaging" Trademarks - By pkane - June 23, 2017 - SF Weekly
SF Weekly

Dykes On Bikes Cheers Supreme Court Ruling About “Disparaging” Trademarks

Dykes on Bikes (Instagram)

Once upon a time, we got Supreme Court rulings in June that struck down bans on openly LGBT people serving in the military or marrying. But this is pretty good, too.

The Supreme Court ruled 8-0 that the government’s Patent Trademark Office (USPTO) cannot prohibit a trademark based on offensive language. It stemmed from a case involving an anti-fascist Asian-American rock band called The Slants, which unsuccessfully sought to trademark its name. (Slants founder Simon Tam wrote a lengthy piece in 2015 detailing the band’s struggle.)

Writing for the majority in Matal v. Tam, Justice Samuel Alito wrote that refusing the Slants’ application “offends a bedrock First Amendment principle. Speech may not be banned on the ground that it expresses ideas that offend.”

San Francisco’s own lesbian motorcycle organization Dykes on Bikes cheered the ruling, for fairly obvious reasons. In light of the ruling, the group plans to seek trademark protection for its name. On Facebook, Dykes on Bikes president Kate Brown wrote [emphasis mine]

It was with great excitement that we read today the United States Supreme Court’s decision in the case of Matal vs. Tam, a case in which the San Francisco Dykes on Bikes® filed an Amicus Brief with guidance and counsel from an incredible team of lawyers. The Court unanimously found it unconstitutional to prohibit registration of a trademark by the United States Patent Trademark Office based on what some may consider disparaging language. This 8-0 decision by the Supreme Court clarifies that the First Amendment prohibits individual government officials from deciding which names are offensive and which are not. We know all too well based on our experience registering the trademark Dykes on Bikes®, that leaving decisions about free speech to individual officials leads to arbitrariness and inconsistency from the Patent Trademark Office examiners. We agree wholeheartedly and for more than 12 years have been arguing at various levels of the United States judicial system that under the First Amendment we have protection for political speech, including the self-referential term “Dykes”.

 Obviously, celebration of this ruling should be measured in its scope. As Brown went on to note, the Washington Redskins‘ offensive and highly anachronistic intellectual property is the most obvious beneficiary. And it would not be desirable, for instance, to have white people go around using the N-word willy-nilly in commercial applications. But by mandating a hands-off approach, the Supreme Court basically said the federal government can’t stop people from making a living off their own identity through satire or other artistic purposes. It’s not unlike the principle that guilty people should go free rather than have their rights abrogated during an improperly conducted trial.

So you know how Facebook has been all over it lately, banning people who refer to themselves as “faggots”? Your move, Menlo Park.