Laws that discriminate based on a particular viewpoint or idea must survive First Amendment scrutiny unless they regulate government speech, and trademark registrations are “private, not government, speech.” The disparagement clause did not satisfy constitutional review and thus it was an invalid regulation of expression.Īlthough all the Justices thought the disparagement clause should be subject to First Amendment scrutiny, they did not agree on the appropriate test for evaluating the constitutionality of the law. In Tam, the eight Justices-newly confirmed Justice Neil Gorsuch did not participate in the decision-unanimously agreed that the disparagement clause violates the First Amendment because it targets derogatory expression with an intent to discourage its use, while allowing registration of words and other marks that are positive or benign. will prevail in its dispute with the government over the cancelled registrations. As this trademark law is now unconstitutional after Tam, it appears that Pro-Football, Inc. on the ground that the term might disparage Native Americans in violation of the disparagement clause. The government recently cancelled six of the “Redskins” trademark registrations owned by Pro-Football, Inc. The Tam case was closely watched by fans and critics of the “Redskins” name for Washington D.C.’s professional football team. Although the band could still call itself “The Slants” without a trademark registration, they wanted the registration because it provides substantial legal benefits and makes it easier to stop use of the phrase by others in a manner that is likely to cause confusion in the marketplace. The band’s current members are all Asian-American and they seek to reclaim this term from its use as a slur for Asians. Patent and Trademark Office’s rejection of Simon Tam’s application to register “The Slants” as a mark for the entertainment services of his rock band. Supreme Court held that the disparagement clause of the federal trademark law, known as the Lanham Act, violates the Free Speech Clause of the First Amendment because the government may not regulate speech “on the ground that it expresses ideas that offend.” The trademark law-enacted in 1946- prohibits the registration of trademarks that “may disparage” any “persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
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