The highly anticipated case of Matal v. Tam resulted in the band, The Slants, eventually being able to register their band name as a trademark, with a goal in mind to reclaim Asian stereotypes. Despite this decision, it is not immediately clear how having a registration enhances the registrant’s right to use the mark as a part of free speech, when the Court observes that Tam could call his band The Slants even without registration. This article touches on the Tam case, by analyzing both the positive and negative rights that federal trademark registration yields. By expanding on a variety of examples, this article will explore the focus for a First Amendment evaluation on rights of speech, rather than focus primarily on the prima facie case that comes with having a trademark registration, concluding that the advantages to free speech resulting from registration are substantial.
David C. Brezina, The Slants Decision Understates the Value of Trademark Registration in Promoting Speech - Correctly Decided With a Conclusory Analysis, 17 J. Marshall Rev. Intell. Prop. L. 380 (2018)