Lori Kozak writes:

As anticipated, the USPTO filed a petition for a writ of certiorari, seeking Supreme Court review of the CAFC’s decision in In re Tam which held that the disparagement provision of Lanham Act 2(a) is unconstitutional as a violation of the Free Speech Clause of the First Amendment.

The case was initially filed by a band called “The Slants” who were refused a federal trademark registration on the grounds that the name is offensive to those of Asian ancestry.  The USPTO Trademark Trial and Appeal Board affirmed the refusal, and the CAFC had initially agreed with the USPTO.  However, an en banc ruling of the CAFC held that the Section 2(a)’s disparagement provision, which has been in existence for over 70 years, is facially unconstitutional under the First Amendment

The case is being closely followed, as this is the same provision used to revoke the Washington Redskins’ trademark registrations, and the football team is making the same First Amendment challenge in that case.

Lori S. Kozak is a partner in the firm’s Los Angeles (Century City) office.