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U.S. Supreme Court Holds "Disparagement Clause" of Trademark Law Unconstitutional

June 19, 2017

  • Free speech prevents the U.S. Patent and Trademark Office (USPTO) from denying registration of trademarks considered disparaging

Today, in Lee v. Tam, the U.S. Supreme Court unanimously held that the so-called "disparagement clause" of the Lanham Act, which governs federal trademark registration, violates constitutionally-protected free speech.  The disparagement clause applies to marks that belittle, denigrate or deprecate members of a racial or ethnic group.  The Supreme Court affirmed a decision by the Court of Appeals for the Federal Circuit that overturned precedent and held that denying an application for federal registration of trademark for "The Slants" is facially unconstitutional.  "Slants" is a derogatory term for persons of Asian descent.  The band intentionally chose "The Slants" to help them "'reclaim' the term and drain its denigrating force."

The Supreme Court stated that "it is far-fetched to suggest that the content of a registered mark is government speech ...."  Instead, as stated by the Court, "[t]rademarks are private, not government, speech ." The Court also stated that the USPTO does not "dream up" trademarks, and the disparagement clause "offends the bedrock First Amendment Principle.  Speech may not be banned on the ground that it expresses ideas that offend."

This decision may pave the way for other trademarks that have been cancelled or refused under the now unconstitutional disparagement clause of the Lanham Act.