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Disparaging Trademarks May Now Be Registered

Posted on Dec 22, 2015 in Blog

In the case of In re Simon Shiao Tam (Case No. 14-1203), the United States Court of Appeals for the Federal Circuit, the court that has jurisdiction over the United States Patent and Trademark Office, struck down the provision of Section 2A of the Lanham Act which prevents registering offensive trademarks.  Yes, the same provision of the Lanham Act which was used to hold invalid the Washington Redskins mark has been held to be unconstitutional.  The decision came in an unrelated case where the band The Slants tried to register the name “The Slants.”  It was refused registration under the provision making “scandalous, immoral, or disparaging marks” unregisterable.

Judge Kimberly Ann Moore, writing for the majority of the court held the provision unconstitutional finding that the government may not penalize private speech merely because it disapproves the message.  “That principle governs even when the governments’ message-discriminatory penalty is less than a prohibition.”  The Redskins case is presently pending in the United States Court of Appeals for the Fourth Circuit, a sister court of the Court of Appeals for the Federal Circuit, and counsel for the Redskins similarly argued the unconstitutionality of the provision.  The decision should inject new life into the Redskins’ appeal.

– by Manny D. Pokotilow



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