The Supreme Court granted the United States Patent and Trademark Office’s petition for certiorari in In re Tam, 117 USPQ2d 1101 (Fed. Cir. 2016), discussed here and here. In that case, the USPTO denied registration of an application to register the trademark THE SLANTS for a rock/dance on the grounds that it was offensive to Asians or Asian-Americans.
The main issue on review is § 2(a) of the Lanham (Trademark) Act, which bars registration of trademarks that “disparage” people, groups, or institutions. While the USPTO denied registration of THE SLANTS, the Federal Circuit, en banc, reversed, finding § 2(a) to be an unconstitutional abridgement of First Amendment rights: the government “cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks.”
Although the question of the constitutionality of § 2(a) came to the U.S. Supreme Court in connection with the USPTO’s denial of registration of THE SLANTS, the issue has been more famously and hotly contested by the Washington Redskins. As discussed previously on this blog here, Native American activists have turned to the civil courts to petition to cancel Pro-Football, Inc.’s REDSKINS trademark registrations pursuant to § 2(a). Pro-Football has also petitioned the Supreme Court for certiorari to join in In re Tam, seeking to skip over the Fourth Circuit and presenting additional important constitutional objections to § 2(a) that are intertwined with THE SLANTS solitary First Amendment question. There has been no action on that petition as yet.
More to come!
