Last month, in Matal v. Tam, the Supreme Court unanimously held (8-0) that the disparagement clause (Section 2(a) of the Lanham Act), is an unconstitutional violation of the First Amendment’s Free Speech Clause. This decision has already caused some companies and individuals to begin filing trademark registration for racially charged words and symbols for products.
Host Anthony Zangrillo discusses this topic with special guest Jim Sawtelle. Jim is a partner at the national law firm Sherman & Howard, and he leads the firm’s intellectual property practice group.
Previously, Sawtelle has said that he’s not surprised by the influx of requests:
“By unanimously striking down the disparagement clause of the federal trademark act, the U.S. Supreme Court has opened the door to registration over many different derogatory terms and phrases. We should expect to see more efforts at securing trademark registration over words intended push the limit of what has been historically considered out-of-bounds from a cultural standpoint. Though not surprised to see applicants trying to push the limits with registration of words or phrases likely to draw attention due to their controversial nature, it is a little surprising to see an entire cottage industry dedicated to the registration of potentially offensive terms appear so quickly, in light of the fact that the Court’s decision was just handed down last month. Anyone opposed to a federal trademark application will still have the ability to challenge it pursuant to a number of grounds, however it is unlikely that an opposition will be successful on the basis of disparagement alone, in light of the decision in the Slants case.”
Anthony explores these issues with Jim for the IP Crowd. Trust the Podcast!
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