The Supreme Court Tackles Disparaging Trademarks — Will the Washington Redskins Win on First Amendment Grounds?

By Mark Conrad   While the use of racially and ethnically insensitive language, even in a context of hate, is generally protected under the First Amendment,[1] a longstanding exception exists under the Lanham Act, the federal legislation regulating trademarks. Section 2(a) of the Act explicitly prohibits the registration of trademarks that contain language that a “substantial composite of the referenced group” perceives as disparaging a religion, nation, ethnic group, or belief system.[