To update my earlier blog [Blog] concerning whether Section 2 (a) of the Lanham Act, 1946, which restricts federal registration of trademarks found to be scandalous or disparaging, will withstand challenges to its constitutionality, the Redskins football team has raised the ante by its unusual petition to the Supreme Court.
In the petition, the Redskins suggests that the Supreme Court not consider the constitutionality of Section 2 (a) until after the team’s appeal of an adverse District Court ruling is decided by the U.S. Court of Appeals for the Fourth Circuit. Continue reading
Section 2 (a) of the Lanham Act, 1946, 15 U.S.C. Sec. 2 (a), which restricts the registration of trademarks found by the USPTO to be scandalous or disparaging, was determined to be unconstitutional on the basis of the First Amendment by the Court of Appeals for the Federal Circuit in a case (In re Simon Shiao Tam-2014-1203), brought by “The Slants,” an Asian-American rock band. [Background]
Mr. Simon Shiao Tam, as the owner of the mark, filed in 2011 a registration application for “The Slants” (Serial No. 85-472044). The USPTO examiner rejected the application on the basis that the applied for mark was disparaging under Section 2 (a) because the word had a long history of being used in a derogatory way for people of Asian decent. The examining attorney believed that people of Asian decent would take offense from the use of the applied for mark. The rejection was upheld by the Trademark Trial and Appeal Board (TTAB.) Continue reading