Disparaging marks: The question of offensiveness - World Trademark Review

Disparaging marks: The question of offensiveness

By Brian Focarino

The US Supreme Court’s decision to take up a constitutional challenge to the bar on registering marks that “may disparage” will have far-reaching implications for trademark practitioners, as well as the practice of trademark law

In 2016 the US Supreme Court agreed to review a Federal Circuit ruling which held unconstitutional a law prohibiting the registration of trademarks that “may disparage” people or groups. In a case involving an Asian-American dance band’s bid to register its name, The Slants, as a trademark, the court will consider whether the bar on registering disparaging marks in Section 2(a) of the Lanham Act (15 USC §1052(a)) violates the First Amendment guarantee of free speech. The case is one that trademark professionals should follow closely.

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