Law360, New York (December 22, 2015, 11:51 AM ET) -- The Federal Circuit ruled Tuesday that the federal government’s ban on “disparaging” trademark registrations is a violation of the First Amendment, striking down the provision that was used to revoke the Washington Redskins' trademark registrations.
The ruling, which came in a separate case filed by members of a band called The Slants who were refused a registration on their name on the grounds that it was offensive to Asian-Americans, declared the Lanham Act’s Section 2a to be an unconstitutional discrimination based on unpopular speech.
“Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities,” the appeals court wrote. “But the First Amendment protects even hurtful speech.”
“The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks,” the court wrote.
Section 2a is the same provision cited by the Trademark Trial and Appeal Board in June 2014 when it revoked the Washington football team's trademark registrations. That ruling was upheld by a federal judge this summer, and is currently on appeal to the Fourth Circuit.
The band is represented by Ronald D. Coleman of Archer & Greiner PC.
The USPTO is represented in-house by Nathan K. Kelley, Christina Hieber, Thomas W. Krause, Molly R. Silfen and Thomas L. Casagrande as well as by Mark R. Freeman, Joshua Marc Salzman, and Daniel Tenny of the U.S. Department of Justice.
The case is In re: Simon Shiao Tam, case number 14-1203, at the U.S. Court of Appeal for the Federal Circuit.
You can be sure this case is going onward and upward. As a matter of Constitutional law, SCOTUS will not only have the opportunity for the final word but they will want the final word. Stay tuned.
