On June 19, 2017, the Supreme Court ruled in Matal v. Tam, that the anti-disparagement provisions of the federal Lanham Act, which governs federal trademark applications, infringes on free speech rights of trademark applicants. The Supreme Court held that Asian-American members of the rock band “The Slants” have the right to trademark their disparaging name in a ruling that will potentially have a broad impact on how the First Amendment is applied to federal trademarks.
The United States Patent and Trademark Office rejected the band’s federal trademark application and cited the anti-disparagement provision of the Lanham Act prohibiting federal trademarks that “disparage…or bring…into contempt or disrepute” any “persons, living or dead.” The Supreme Court held in Matal v. Tam, that trademarks are government speech, and not private speech, and therefore the anti-disparagement provision violates the trademark applicant’s commercial free speech as protected by the First Amendment. The majority opinion, written by Justice Samuel Alito, noted that the issuance of trademarks by the United States Patent and Trademark Office is not immune from the First Amendment as it is a government program.
The Supreme Court’s ruling is a win for all individuals or businesses seeking to apply for federal trademarks. Notably, the Supreme Court’s decision may be powerful precedent for the NFL’s Washington Redskins who are currently litigating with the United States Patent and Trademark Office over its cancellation of the team’s trademarks relating to “Redskins” in 2014. The United States Patent and Trademark Office argues that the team’s trademarks may be offensive to some Native Americans and thus violate the federal Lanham Act. Currently, that lawsuit is stayed pending the Supreme Court’s Matal v. Tam decision.
To evaluate what intellectual property your own business may need to protect, and to get assistance in filing for federal trademark or copyright protection, please contact the business attorneys at Shinners & Cook, P.C.