SCOTUS to Weigh in On Constitutionality of Offensive Trademarks

wa-redskins

Another Controversial Trademark: The Washington Redskins

By Adam Roberts

Simon Shao Tam named his band ‘The Slants,’ to make a statement.  He wanted to address cultural issues and discussions regarding race in society.  This type of free speech is generally considered foundational to the protections of the First Amendment.  But, Tam was denied this right.

In In Re Tam, the U.S. Patent and Trademark Office (USPTO) denied Tam’s registration for ‘The Slants,’ finding that a “substantial composite of persons of Asian descent would find the term offensive.”  Tam appealed his case to the Federal Circuit Court of Appeals who overturned the decision.  In her opinion, Judge Kimberly Moore expressed that the statute on which the Government relied – Section 2(a) of the Lanham Act – was unconstitutional under the First Amendment.  The court held that discrimination against content-based private speech is subject to strict scrutiny, which means the Government must present a compelling interest to restrict this kind of speech.  The Government’s interest in excluding speech they determined offensive was considered illegitimate to the court, and a judgment was entered in favor of Tam.

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Federal Circuit Vindicates First Amendment by Holding Section of Lanham Act Unconstitutional

trademark-gavelBy Vijay Kumar

The Court of Appeals for the Federal Circuit (CAFC) recently decided en banc that Section 2(a) of the Lanham Act, which prohibits registration of “disparaging” trademarks, is unconstitutional under the First Amendment. The effects of this significant decision (In re Tam) will undoubtedly ripple across multiple industries and affect many controversial trademarks, including most notably the Washington Redskins, who are currently appealing a district court decision to the 4th Circuit Court of Appeals. Continue reading