First Amendment Protects Hurtful Speech, Even Hurtful Trademarks
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On Tuesday, December 22, 2015, the US Court of Appeals for the Federal Circuit issued a much-anticipated opinion regarding the constitutionality of the prohibition against “disparaging” trademarks. In an 9-3 en banc opinion, the Federal Circuit held that the exclusion of disparaging trademarks under Section 2(a) of the Lanham Act violates the First Amendment.

Many of the marks rejected as disparaging convey hurtful speech that harms members of stigmatized communities. 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. It cannot refuse to register marks because it concludes that such marks will be disparaging to others.

The In re Tam decision represents a significant shift in trademark law and will likely have significant impact on the pending litigation including the Washington Redskins trademarks.

Under Section 2(a) of the Lanham Act, the United States Patent and Trademark Office (PTO) may refuse registration of trademarks that it deems disparaging of persons, institutions, beliefs or national symbols. The test for a disparaging mark includes a determination of the likely meaning of the matter in question and if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group. This type of PTO refusal has received a great deal of national attention since a federal judge ordered cancellation of the Washington Redskins trademarks based on these grounds in July of this year.

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