U.S. trademark law extends benefits and protections to the owners of registered trademarks, but not every name or brand identity is eligible for registration, as evidenced by controversies involving organizations such as the Washington Redskins.

One of the reasons an application for a trademark may be denied registration is if the proposed trademark may be considered disparaging. Section 2(a) of 15 U.S.C. § 1052 permits PTO examiners to deny registration to any trademark that “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.”

What comprises immorality, scandalousness, or disparagement in a trademark, however, is a matter of subjective judgment, and can vary according to context. A brand identity that crosses the line for a food product, for example, might be acceptable for a line of sporting goods or a pest control service. Perceptions of what is offensive also change over time, and not always in the direction of increased permissiveness. In recent years, courts have grown noticeably more conservative in their rulings regarding what is considered offensive.

A widely publicized example of this occurred earlier this year, when the U.S. Court of Appeals for the Federal Circuit upheld the denial of trademark registration for an Asian-American rock band known as “The Slants” on the grounds that the name disparaged people of Asian ethnicity. The court was unconvinced by the plaintiff’s position that its use of “The Slants,” as an Asian-American band, effectively subverted the offensive connotations of the name.

It is not only applicants who are being denied registration. Some longtime registered marks have been cancelled on similar grounds that they are disparaging. The Washington Redskins of the National Football League, for example, lost trademark protection in 2014. The Trademark Trial and Appeal Board (TTAB) affirmed that the team’s name and symbols were associated with Native Americans and that “a substantial composite of Native Americans found the term Redskins to be disparaging” at the time the trademark first was registered, in 1967.

Change may be on the horizon, however. Even as CAFC upheld the denial of trademark registration to The Slants, Judge Kimberly Moore wrote separately to call for the court to revisit the constitutionality of such prohibitions. The Federal Circuit agreed and has ordered an en banc review to decide whether barring a trademark registration on the grounds that it is disparaging violates the First Amendment.

In the meantime, trademark applicants who are committed to a particular name or brand identity can take steps to anticipate and perhaps pre-empt objections. Market research firms can conduct studies to gauge how a particular name or brand is received by the general public or by particular groups; if favorable, the results can be used as evidence in favor of the application for trademark registration. Remember, too, that being denied federal trademark registration does not preclude the use of a product or service name in the marketplace. A qualified trademark attorney can help business owners decide on the best course of action in order to safeguard their intellectual property.