The prohibition on trademarking offensive or disparaging marks—here, an Asian dance rock band called “The Slants”—violated the First Amendment, since the prohibition serves no substantial governmental interest and is not narrowly drawn. The Lanham Act’s anti-disparagement provision which bars registration of trademarks that disparage persons, institutions, beliefs or national symbols violates the First Amendment. A trademark is not government speech, nor is it a government subsidy of a type that would permit the government to dictate speech of those accepting the subsidy. The anti-disparagement provision fails even the relaxed commercial speech test under the First Amendment since it serves no substantial governmental interest and is not narrowly drawn. It would prevent registration of a trademark that disparaged persons deserving disparagement like racists or sexists.
United States Supreme Court (Alito, J.; Kennedy, Ginsburg, Sotomayor, Kagan & Thomas concurring in part & concurring in the judgment); June 19,2 017; 2017 WL 2621315