The Supreme Court agreed on September 29 to consider whether a
provision of the Lanham Act that allows the USPTO to refuse to
register "disparaging" trademarks violates the
constitutional right to free speech. The case is Lee v.
Tam (Docket No. 15-1293).
Tam concerns a rock band called "The Slants"
founded in 2006 in Portland, Oregon by Simon Tam. Like the
band's music, the name is an exercise in social commentary:
Tam's goal was to reappropriate a derogatory term for people of
Asian descent. In 2011, Tam tried to register "The
Slants" as a trademark. The PTO refused, calling the
name "disparaging" within the meaning of 15 U.S.C.
section 1052(a). The PTO has made a number of similar calls
of late; for example, it refused to register the mark "Stop
the Islamization of America" on the grounds that it is
disparaging to Muslims.
A divided en banc panel of the Federal Circuit Court of
Appeals held section 1052(a) facially invalid in December
2015. The Federal Circuit ruled that it necessarily violates
the First Amendment right to free speech to reject a mark based on
disapproval of its content. In that Court's words,
"the First Amendment protects even hurtful speech."
The PTO petitioned for a writ of certiorari in April, which the
Supreme Court granted on September 29. No date has been set
for oral argument.
Tam and his band are not the only litigants currently trying to
invalidate section 1052(a). In a case currently pending
before the Fourth Circuit, the NFL's Washington Redskins team
is challenging the PTO's decision to revoke the team's
trademarks in various iterations of its name on the grounds that
the marks were disparaging to Native Americans when registered
between 1967 and 1990. The team filed an amicus brief urging
the Court to hear its case alongside Tam's without waiting for
the Fourth Circuit to rule; the Court declined, so for now the
'Skins will be forced to watch from the sideline.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The annual seminar addressing changes and developments in state and federal wage and hour laws is a unique one-day program and hundreds of California employers, personnel managers, controllers, attorneys, payroll managers, and supervisors attend each year.
This year registrants will receive a free copy of the New 2017 Edition of the WAGE AND HOUR MANUAL FOR CALIFORNIA EMPLOYERS by Attorney Simmons (over 980 pages). The book is the only one of its kind and is widely recognized as the leading text in its field.
The seminar is designed to provide a guide to Human Resource Officials, Personnel Specialists, Consultants, Supervisors and other management officials through the ever-increasing maze of state and federal employment discrimination laws. Registrants will receive a free copy of the New 2017 Edition of Simmons' EMPLOYMENT DISCRIMINATION AND EEO PRACTICE MANUAL FOR CALIFORNIA EMPLOYERS (over 810 pages).
The California Department of Fair Employment and Housing and the FEHC have both recognized the value of this manual and obtained copies for investigators, consultants and supervisors throughout California. The program will also examine other personnel relations laws and issues of significance to California employers including disability discrimination, pregnancy discrimination, "wrongful discharge," and "unfair termination."
Though politics ruled the headlines in 2016, the year still brought big changes in intellectual property law and its application, most notably in patent subject matter eligibility, inter partes review institution and appeal and design patent damages.
Chanel, a billion-dollar fashion company that produces and sells luxury consumer products, identifies its products by the "Chanel" trademark and the "CC Monogram" trademark, which consists of two interlocking...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).