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Say What You Will About Trademarks

June 19, 2017
Post by Blog Staff

Simon Tam chose to name his band “The Slants” with the intent to reclaim the term and erase the denigrating connotations associated with it. However, he was confronted with the denial of his trademark application based on the disparagement clause of the Lanham Act. This raised an interesting issue of whether the disparagement clause violates the First Amendment.

The Lanham Act allows trademarks to be federally registered. However, it also contains provisions that can prevent trademarks from being federally registered. The disparagement clause, being one of those provisions, prevents the registration of a trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. §1052(a). This language presents a problem because it conflicts with the Free Speech Clause of the First Amendment.

To rectify the situation, the Government put forth three arguments: (1) trademarks are government speech, not private speech, (2) trademarks are a form of government subsidy, and (3) the constitutionality of the disparagement clause should be tested under a new “government-program” doctrine. The Supreme Court ultimately rejected these arguments in Matal v. Tam stating that trademarks are private speech, registration of a trademark is not a subsidy program, and the disparagement clause would fail the viewpoint discrimination test of the “government-program” doctrine.

 

 

 

For more information or if you have questions, please contact one of our  MVS IP attorneys or call us at (515) 288-3667.

 



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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

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