Morality and all that Jazz: The Role of Moral Objections in Trade Mark Law-the US Supreme Court decision in Matal v Tarn

摘要

Should a morally offensive word or phrase be eligible for protection as a trade mark? There are two schools of thought. Many feel that it should not. Why should a business be able to whip up controversy and clickbait by use of a legal system intended to protect good faith commercial activities? And why should the public be subjected to an onslaught of offensive material in advertising and on the high street? Others take a different view, saying that it is not the role of trade mark examiners to be arbiters of taste and decency. They are not trained for it and should not be required to act as gatekeepers in the realm of freedom of speech. The legal analysis of this question is controversial, and has taken different directions around the world. A recent US Supreme Court decision over the name of Asian American band "The Slants" has brought it into the limelight again. We compare that analysis with the EU position, and conclude that trade mark officials are not the right people to be controlling registration of offensive or disparaging terms.