Try to make sense of this: The U.S. Patent and Trademark Office (USPTO) refused to register the trademark “HAVE YOU HEARD THAT SATAN IS A REPUBLICAN?” because it disparaged the Republican party. But when an application was filed for the mark “THE DEVIL IS A DEMOCRAT,” the USPTO agreed that the mark could be registered.
Look closely at 15 U.S.C. Section 1052(a) and the root of the problem comes to light: “No trademark … shall be refused registration … unless it … consists of … matter which may disparage.” Should the U.S. government be in a position to decide whether language is disparaging? Even if it is disparaging, should the U.S. government deny the benefits of federal registration to a trademark owner? For that matter, by refusing federal trademark registration on the basis of language, does Section 1052(a) violate the First Amendment right to freedom of speech? These and other questions captured the intellectual property spotlight last week, as oral argument at the U.S. Supreme Court took place in Lee v. Tam (15-1293).
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