LAS VEGAS — Industry attorney Marc Randazza says the adult entertainment biz should closely follow a trademark protection case that will be argued before U.S. Supreme Court justices.
Today, the high court agreed to decide whether The Slants, an Asian American rock band from Portland, Ore, can trademark its name despite the federal government’s objection that it is an offensive term.
The Slants case came to the high court’s attention after the band applied for a trademark for the band’s name and was rejected after an examining attorney at the U.S. Patent and Trademark Office found the mark "The Slants" disparaging and declined to register it.
But last December the Federal Circuit ruled favorably for The Slants, holding that the U.S. government can’t deny trademarks over offensive names.
The ruling was hailed as a big victory for not just The Slants, but for companies in the adult entertainment business that might use rough-and-tumble jargon to describe their products and services.
The decision invited a challenge to the “immoral and scandalous” clause for trademarks that most affects the adult entertainment industry.
“It isn’t just about the band, nor is it just about offensive trademarks,” Randazza told XBIZ. “This case is about whether a subjective and really arbitrary decision about ‘morality’ should be used in order to deprive a citizen of a governmental benefit, which is given out to others who might not be deemed ‘inoffensive.’”
Randazza said that in a free society, the government should not be the “morality police.” For too long, the USPTO has disagreed, he said.
"The implications of this case could be a lot more far-reaching," Randazza said. “For example, if Congress can enact a statute giving some administrative bureaucrat the power to determine that something is ‘immoral’ and thus not worthy of intellectual property protection, what is to stop Congress from amending the Copyright Act the same way?”
“If it did that, potentially, all American-made pornography would be incapable of protection in U.S. courts. However, given the international agreements we have signed, all foreign-made porn would be protectable.
“This is what happened in Taiwan — as their local copyright law prohibits giving copyright protection to porn, but a Japanese porn producer had the right to enforce its copyrights in Taiwan. Our international agreements permit signatory nations to discriminate against their own citizens, but not foreign citizens.”
Randazza, who wrote a paper on the matter earlier this year, said that with an eight-member court, if the decision is split 4-4, then the decision would stand.
“I am really up in the air about how this will turn out. However, I am delighted that this is getting to the Supreme Court before the Redskins case,” he said. “The optics of this case are a lot better than that one."
The Slants case likely will determine whether the NFL's Washington Redskins will lose its trademark. Native Americans sued the team, holding that the name Redskins is offensive and disparaging, and the government office agreed its trademark status should be withdrawn on a provision of the 1946 Lanham Act that prevents the registration of marks that may disparage certain people.
The Redskins filed a writ for the high court to hear that case, as well.