First Amendment Protects Hurtful Speech, Even Hurtful Trademarks
On Tuesday, December 22, 2105, the US Court of Appeals for the Federal Circuit issued a much- anticipated opinion regarding the constitutionality of the prohibition against “disparaging” trademarks. In an 9-3 en banc opinion, the Federal Circuit held that the exclusion of disparaging trademarks under Section 2(a) of the Lanham Act violates the First Amendment.Many of the marks rejected as disparaging convey hurtful speech that harms members of stigmatized communities. But the First Amendment protects even hurtful speech ….
This decision will likely be appealed to the Supreme Court, so the Section 2(a) disparagement provision may remain in flux for some time. However, if ultimately upheld, it will signify a major win for the Washington Redskins, Mr. Tam and many other trademark owners because the PTO will no longer be able to decide which marks are disparaging, thereby refusing federal registration on that basis.
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