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Trademark Retrospective: 2017, A Year for Free Speech

The New Year is a time for reflection and retrospection.  Such reflection of trademark cases reveal a dismantling of prior restrictions on trademark registration in favor of free speech.  Section 2(a) of the Lanham Act previously restricted disparaging, immoral, or scandalous marks.  These marks were simply denied registration outright.  The courts in Matal v. Tam and In re Erik Brunetti found that such restrictions were unconstitutional violations of the First Amendment. Undoubtedly, 2017 was a win for free speech and perhaps a beginning of the influx of trademark applicants seeking registration of trademarks which were once taboo.

 

In Matal v. Tam, 582 U.S. ___ (2017), the United States Supreme Court examined whether THE SLANTS, a mark used in connection with an Asian-American rock band, could be denied registration under Section 2(a) when it was used by the band as a term of empowerment rather than its historical disparagement of Asian Americans.  The Supreme Court found that the disparagement provision of Section 2(a) of the Lanham Act was an unconstitutional violation of the Free Speech clause of the First Amendment.

 

In In re Erik Brunetti, No. 2015-1109 (Fed. Cir. Dec. 15, 2017), and only six months after Tam, the Federal Circuit somewhat reluctantly found that Section 2(a)’s restrictions on registration of immoral or scandalous matter was also an unconstitutional restriction of free speech.  The Federal Circuit noted that the mark at issue–FUCT for clothing–was “vulgar” and also found other marks rejected under Section 2(a) similarly “lewd, crass, or even disturbing.”  However, despite the scandalous nature of these marks, the Federal Circuit found that the First Amendment “protects private expression, even private expression which is offensive to a substantial composite of the general public.”

 

Matal v. Tam challenged the bounds of free speech in the marketplace.  In re Erik Brunetti opened the floodgates.  With Section 2(a)’s prior restrictions for disparaging, immoral, or scandalous marks gone, only time will tell if 2018 will be a year of vulgarity.

 

Follow the links to read the decisions to Matal v. Tam and In re Erik Brunetti.

 

If you have considered or are considering trademark registration of one of these previously-restricted marks, 2018 could be your year to seek registration.  If you would like to discuss trademark registration, please contact me at ssspangler@nmmlaw.com.