Friday, August 19, 2016

The Federal Circuit Rules on Trademarks Considered Offensive: May Affect Redskins Trademark Dispute

"Two separate cases involving the revocation of the Washington Redskins’ federally registered trademarks (ProFootball, Inc. v. Blackhorse) and the refusal to grant registration for a rock band’s name (In re Tam) raise questions about the constitutionality of Section 2(a) of the Trademark Act of 1946 (conventionally known as the Lanham Act), which denies trademark registration to certain offensive content. In relevant part, Section 2(a) prohibits registration if the trademark “consists of matter . . . which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Section 14(b) of the Lanham Act then permits the cancellation of federal registration if a mark is later found to have been registered contrary to Section 2(a). In one of these cases, In re Tam, the court found that Section 2(a) is an unconstitutional government regulation of speech. The opinion overturns seventy years of judicial precedent—that Section 2(a) does not implicate the First Amendment—and may pave the way for federal registration of marks that some individuals or communities may find offensive..."
Offensive trademarks

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