This article was submitted by Matthew Clark, SmithAmundsen LLC. If you would like to write or submit content for the Intellectual Property Section, please email Kim Ferguson at firstname.lastname@example.org
In Lee v. Tam, the Supreme Court is deciding whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which bars registration of marks containing matter that disparages “persons, living or dead, institutions, beliefs, or national symbols, or bring[s] them into contempt, or disrepute,” is facially invalid under the Free Speech Clause of the First Amendment.
In 2011, The Slants, an Asian-American rock band, attempted to register their name with the United States Patent & Trademark Office, but their trademark application was refused registration on grounds that the mark disparaged persons of Asian descent. The U.S. Court of Appeals for the Federal Circuit reversed the decision finding the Lanham Act’s ban on disparaging trademarks unconstitutional. The Supreme Court agreed to review the decision last year.
On January 18, 2017, oral arguments were heard in the case, and the Justices’ inquiries into the disparagement provision indicated doubt as to its constitutionality.
Read a summary of the oral arguments by Amy Howe of the SCOTUS blog here.
To hear a recording of the oral argument, click here.