Supreme Court To Review Statute Against Disparaging Trademarks

Federal trademark law, specifically, 15 U.S.C. § 1052(a),  provides that the Patent and Trademark Office can refuse to register a trademark that disparages persons, institutions, beliefs, or national symbols. Last December, the entire Federal Circuit Court of Appeals held this disparagement provision to be an unconstitutional violation of the First Amendment, as we discussed at the time. That case pitted Simon Shiao Tam, the front man for the Asian–American dance–rock band, The Slants, against the Patent and Trademark Office, which had rejected his application for registration to the band’s name, which had been chosen as a political act specifically because of the term’s racist associations. The Federal Circuit held that the disparagement clause violated the First Amendment because it required the PTO to make decisions about whether potentially sensitive content—such as racially charged language—was intended to be disparaging or not, a judgment call based on the PTO’s belief about the viewpoint of the speaker using the mark. Today, the Supreme Court agreed to review that decision by granting the petition for writ of certiorari filed by Michelle K. Lee in her capacity as Director of the PTO to decide whether the disparagement provision is, as the Federal Circuit held, facially invalid under the Free Speech Clause of the First Amendment.