Supreme Court Hears Argument in Trademark Case in Which a Portion of the Federal Trademark Act Was H

On January 18, 2017 the U.S. Supreme Court heard argument in the case of Lee v. Tam, No. 15-1293. There, Mr. Tam, who was a member of a rock band named “The Slants,” attempted to register that name in the United States Patent and Trademark Office (PTO) for entertainment services.

The PTO refused to register the mark, finding it likely disparaging to persons of Asian descent under Section 2(a) of the Lanham Act, which bars the PTO from registering disparaging marks. On appeal, nine judges of the US Court of Appeals for the Federal Circuit found that section of the Lanham Act to violate the First Amendment. In re Tam, 808 F.3d 1321 (2015).

The Supreme Court granted certiorari to decide whether the disparagement provision in Section 2(a) is facially invalid under the Free Speech Clause of the First Amendment. A decision is expected before the end of the Court’s current term in late-June, and also will likely affect the ongoing trademark battle involving the Washington Redskins football team whose registrations have been canceled under the same provision.

A link to the transcript of the oral argument before the Supreme Court can be found here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1293_l6gn.pdf

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