Intellectual Property Law

New Matter SUMMER 2017 Volume 42, Number 2

The Band Who Must Not Be Named: Summary of Briefs and Oral Hearing in Lee v. Tam

STEPHANIE SPANGLER
Siskind Boyd LLP

INTRODUCTION

On November 14, 2011, Simon Tam, the leader of the all Asian-American rock band called The Slants, filed an application to register the trademark, THE SLANTS. The PTO denied registration because the mark was disparaging to Asian Americans.1 Tam, on a mission to transform the derogatory meaning of "the slants" into one of empowerment, pressed on undeterred.

Tam filed an appeal before the Court of Appeals for the Federal Circuit, which initially agreed with the PTO.2 In a subsequent en banc rehearing, the Federal Circuit changed its view, holding that because the Lanham Act’s disparagement provision is a viewpoint-based restriction on speech, strict scrutiny applies.3 The court then held that the provision did not serve a compelling government interest.4 Going further, the court also noted that even if the disparagement provision were to be considered a restriction on commercial speech (where an intermediate scrutiny standard would apply), there was no substantial government interest that justified the restriction.5

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