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Federal Circuit Rules Federal Trademark Statute Ban on DIsparaging Marks to Be Unconstitutional

Today the Federal Circuit Court of Appeals ruled that the section of the Lanham Act which bans registration of "disparaging" trademarks is an unconstitutional violation of First Amendment free speech.

The case, In re Simon Shiao Tam (case no. 14-1203), involved the U.S. Trademark Office's refusal to register the mark THE SLANTS for a music band on grounds that it disparaged an ethnic group. In issuing its decision, the appeals court wrote that "[m]any of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities," but that "the First Amendment protects even hurtful speech." It went on to state that "[t]he government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks."

This decision could impact the case pending before the U.S. Court of Appeals for the Fourth Circuit involving the cancellation of the Washington Redskins trademark registrations on grounds of disparagement.

Stay tuned for further updates.

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Susan Neuberger Weller manages the Trademark & Copyright Practice at Mintz. Susan assists clients with securing and protecting IP assets across the globe. She's worked with clients in a variety of industries, including pharmaceuticals, medical devices, software, electronics, and entertainment.