On June 19, 2017, the U.S. Supreme Court held that trademarks are private speech protectable under the First Amendment and ban on registration of disparaging trademarks violates the Free Speech Clause. Matal v. Tam, 582 U.S. ___ (2017). Simon Tam, lead singer of the rock group "The Slants", sought federal registration of the mark "The Slants" in an effort to reclaim and take ownership of Asian stereotypes. USPTO refused registration finding that "even though Tam may have chosen the mark to reappropriate the disparaging term, a substantial portion of persons of Asian descent would find the term offensive." TTAB affirmed the USPTO's refusal and Tam appealed to the Federal Circuit. A panel of the court affirmed the TTAB's ruling but an en banc court, in a 9-2 decision, determined that Section 2(a) of the Lanham Act is facially unconstitutional.
In an unanimous decision, the Supreme Court affirmed the Federal Circuit's en banc ruling. The Court rejected the government's argument that trademark registration is not subject to First Amendment scrutiny as it is government speech rather than private speech. The Court noted that there are more than 2million trademarks and these marks do not convey any government message. The Court also rejected the argument that trademark registration is a government subsidy noting that no payments are made to applicants while subsidies involve cash payments or equivalents. Finally, the Court rejected the argument that trademarks are commercial speech noting that the disparagement clause cannot withstand the relaxed scrutiny under Central Hudson as it neither serves a substantial interest nor is it narrowly drawn.
Full text of the opinion is available here.
In an unanimous decision, the Supreme Court affirmed the Federal Circuit's en banc ruling. The Court rejected the government's argument that trademark registration is not subject to First Amendment scrutiny as it is government speech rather than private speech. The Court noted that there are more than 2million trademarks and these marks do not convey any government message. The Court also rejected the argument that trademark registration is a government subsidy noting that no payments are made to applicants while subsidies involve cash payments or equivalents. Finally, the Court rejected the argument that trademarks are commercial speech noting that the disparagement clause cannot withstand the relaxed scrutiny under Central Hudson as it neither serves a substantial interest nor is it narrowly drawn.
Full text of the opinion is available here.
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