The examiner at the US Patent and Trademark Office (PTO) refused to register Tam's mark and found it likely disparaging to "persons of Asian descent" under § 2(a).

Thus, the association of the term SLANTS with those of Asian descent is evidenced by how the applicant uses the work - as the name of an all Asian-American band.

[2] Before the United States Court of Appeals for the Federal Circuit in Washington, DC,[4][5] the case was titled In re Tam.

[6] The PTO used anecdotal sources like Urban Dictionary to support its claims but ignored survey data, linguistics experts, and legal declarations from Asian American community leaders.

[4][10] Tam was represented by John C. Connell, Ron Coleman and Joel MacMull, then of Archer & Greiner.

Section 2(a)'s ban on the federal registration of "immoral" or "scandalous" marks originated in the trademark legislation of the Lanham Act.

[13] No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501(9) of title 19) enters into force with respect to the United States.

'[23] For Central Hudson to apply, the court would have to determine that the statute at issue deals with commercial speech.

[24] From Central Hudson, the Supreme Court developed a four-part test to determine whether a statute passes muster:[2] (1) Whether the expression is protected by the First Amendment—for it to fall here, it must concern lawful activity and not be misleading; (2) whether the asserted governmental interest is substantial; (3) whether the regulation directly advances the governmental interest asserted; and (4) whether the regulation is no more extensive than necessary to serve that interest—there must be a "reasonable fit" between the government's ends and the means of achieving those ends.

[25] The central issue before the Federal Circuit was to determine whether the disparaging provision of the Lanham Act was unconstitutional and should therefore be voided.

2015), Circuit Judge Moore decided that the disparaging provision of the Lanham Act was unconstitutional for various reasons and that Tam should be granted trademark protection on THE SLANTS.

[4] The government tried to defend their position before the Federal Circuit by saying that it should be able to deny protection to the most "vile" racial epithets and images, but the Federal Circuit stated, "When the government discriminates against speech because it disapproves of the message conveyed by the speech, it discriminates on the basis of viewpoint.

[4] The Federal Circuit found the only difference between marks such as "The Slants" and "Celebrasians" and "Asian Efficiency" is the messages conveyed.

[4][28] The government raised the argument that the disparaging provision of the Lanham Act should be reviewed under intermediate scrutiny by way of the Central Hudson test because the inherent nature of trademarks was commercial.

[4] The Federal Circuit ultimately determined that no taxpayer dollars are used in registering trademarks, and their operation is completely user-funded from application fees.

[4] Judge Dyk also believed that many trademarks lack expressive characteristics that would merit First Amendment protection and so the analysis should be under the Central Hudson test, not strict scrutiny.

[4] Reyna then determined he government has a legitimate interest in promoting the orderly flow of commerce and so the law should pass intermediate scrutiny.

In the majority opinion, Justice Alito wrote: Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."

Justice Kennedy wrote a concurring opinion that stated "by mandating positivity, the law here might silence dissent and distort the marketplace of ideas.

Pro-Football had ruled in favor of Blackhorse's claim that the "Redskins" trademark "may disparage" Native Americans.