Part One
The diversity in the United States in terms of race, culture, and religion gives rise to the concern of creating laws that protect each group to ensure they live in a conducive space and continue their practices. In theory, the creation of bills to appease and protect every diversity that exits seems possible. Still, in practicality, the task is difficult as overlaps occur, resulting in discriminative claims and unjust due process or mistreatment. Regarding trademarks, the First Amendment protects individuals, groups, and businesses in choosing their naming and brand if the terms used can be proven not to be offensive and disparaging. The problem comes in who decides what grounds are offensive (Calvert, 2018). Becoming a subjective matter, as in the case of the 2017 Matal vs. Tam, there needs to be a distinction between an offensive slur and viewpoint discrimination. Tam argued that his band's name was intended to defuse the term's derogatory nature within his rights under the First Amendment.
Furthermore, despite Tam being denied application of his band name by the Patent and Trademark Office (PTO), an appeal to the U.S. Court of Appeals for the D.C. Circuit proved successful. As the court ruled that the government cannot deny trademarks which are expressions and because they are offensive (Song, 2019). The same case is evident for the Washington Redskins, who, despite being in the process of changing their name, have every right to use the trademark as freedom of their expression without malicious intent. Sometimes, public opinion affects the reputation of a brand, which is the case for the Redskins who have chosen the route of mitigating the effects of offensive trademarks rather than standing up for their right to use it with no malice or discrimination. As the court ruled in the appeal case for Tam, companies, groups, or individuals' expressions and trademarks, do not represent the government in speech and what it supports. Federal trademarks, therefore, become immune as supported by the First Amendment as expressions of private speech, which is well within the rights outlined by law. The first instance of the case depicted a government bias, which described a government-doctrine stance. Meaning that in allowing offensive trademarks, the government is in their support, and hence denying their application makes the government stand against discrimination (Conrad, 2018). The court described this as viewpoint discrimination against free speech and expression, which does not necessarily represent the government's views.
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Part Two
The strongest argument against the process is that expression can be offensive to a race, culture, or belief group. As in Tam's case, the Asian community was appalled by using the name "The Slants," and community leaders wanted the application denied, and apologies ensued. However, they did not understand the reasoning for the expression and the ultimate intention: the First Amendment comes in to support expression before focusing on whether it is offensive (Hsieh, 2018). The reason as to why this counter-argument is valid is based on the ease in misinterpretation of the message, an individual, group, or business sends to the world. Furthermore, many might associate the allowance of offensive trademarks with government support, which brings about political discrimination and chaos. Hence, even if a trademark is just a personal expression, the repercussion it might invoke might be on a large scale resulting in national upset. Conclusively, the First Amendment needs to protect individuals, groups, and businesses (Ramsey, 2018). This freedom of choice can then be scrutinized after determining whether it is offensive and the rationale behind it, and the end goal. The balance between offensive discrimination and freedom of expression becomes a grey area determined by the specificity of the case.
References
Calvert, C. (2018). Merging Offensive-Speech Cases with Viewpoint-Discrimination Principles: The Immediate Impact of the Matal v. Tam on Two Strands of First Amendment Jurisprudence. Journal of Intellectual Property and Entertainment Law , Volume 8, Number 2. Doi: https://heinonline.org/HOL/LandingPage?handle=hein.journals/wmbrts27&div=30&id=&page =
Conrad, M. (2018). Matal v. Tam – A Victory for The Slants, a Touchdown for the Redskins, but an Ambiguous Journey for the First Amendment and Trademark Law. Doi: https://heinonline.org/HOL/LandingPage?handle=hein.journals/caelj36&div=7&id=&page =
Hsieh, T. (2018). The Hybrid Trademark and Free Speech Right Forged from Matal v. Tam. Journal of Intellectual Property and Entertainment Law , Volume 7, Number 2. Doi: https://heinonline.org/HOL/LandingPage?handle=hein.journals/nyuinpe7&div=12&id=&page =
Ramsey, L. (2018). Free Speech Challenges to Trademark Law After Matal v. Tam. Doi: https://heinonline.org/HOL/LandingPage?handle=hein.journals/hulr56&div=17&id=&page =
Song, D. (2019). Blackhorse’s Last Stand: The First Amendment Battle Against the Washington Redskins Trademark after Matal v. Tam. Wake Forest Journal of Business and Intellectual Property Law , Volume 9, Number 2, pp. 174-199. Doi: https://heinonline.org/HOL/LandingPage?handle=hein.journals/wakfinp19&div=14&id=&page =
