Trademarks and License Plate Law

The Supreme Court ruled today that the State of Texas does not have to issue a license plate bearing a privately proposed design if it does not want to. Some citizens of Texas desired to obtain a state issued specialty license plate bearing an image of the Confederate battle flag. The Texas Department of Motor Vehicles Board has the authority to approve and issue license plates bearing privately proposed graphics and slogans. The board said No to the Confederate flag's adornment on Texas plates. And the Supreme Court today holds that the State of Texas can decline to issue a plate for speech that it disapproves of because license plates represent government speech. Government cannot be compelled to adopt speech that it does not agree with.

What does this have to do with trademarks? Recently, the Federal Circuit elected sua sponte to hear en banc the appeal of Simon Tam taken from the refusal of the federal trademark office to register the mark THE SLANTS for an Asian American music group. The PTO took the position that the mark disparages Asian Americans, a portion of which found the slang term offensive. The Federal Circuit panel upheld the PTO's refusal to register based on disparagement. But one week later, on April 27, 2015, the court sua sponte entered its order vacating the panel opinion and ordering a rehearing. Oral argument en banc will likely occur later this year.

So, is there not an interesting connection between the compelled issuance of a license plate bearing a symbol that Texas finds offensive and the issuance of a federal trademark registration certificate for a mark that the PTO finds offensive? And would it not be interesting for the Federal Circuit to strongly consider today's license plate decision in reviewing the demand of Simon Tam to compel the PTO to issue a registration certificate for an offensive slang term?