Is Bar on Registering Disparaging Marks Unconstitutional?
In his Patent and Trademark Law column, Robert C. Scheinfeld discusses the case of 'In re Simon Shiao Tam,' which the Federal Circuit has agreed to rehear en banc, and Federal Circuit Judge Kimberly Moore's "additional views" from the panel decision in that case proclaiming that it "is time for this Court to revisit McGinley's holding on the constitutionality of §2(a) of the Lanham Act."
May 26, 2015 at 11:00 PM
8 minute read
Section 2(a) of the Lanham Act allows the Patent and Trademark Office (PTO) to refuse to register immoral, scandalous, or disparaging marks. 15 U.S.C. §1052(a). The First Amendment of the U.S. Constitution, however, says that “Congress shall make no law…abridging the freedom of speech.” Doesn't the First Amendment, therefore, render Section 2(a) of the Lanham Act unconstitutional?
Today, and for at least the last 35 years, the answer is (and has been) no. This, however, may change, given the U.S. Court of Appeals for the Federal Circuit's per curiam order on April 27, 2015, vacating a prior panel opinion and declaring that it shall address en banc the following issue: “Does the bar on registration of disparaging marks in 15 U.S.C. §1052(a) violate the First Amendment?”1
The predecessor court to the Federal Circuit wrote in In re McGinley2:
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