Thursday, September 10, 2015

Recommended Reading: Ted Davis, Federal Registration and the Constitutional Right to Petition

Ted Davis, in his latest article entitled "Content-Based Prohibitions on Federal Registration and the Constitutional Right to Petition," provides a different "slant" on the role of the First Amendment in the application of Section 2(a) in the REDSKINS case, Pro Football, Inc. v. Blackhorse. He points out that the courts have considered Pro Football's argument that the loss of its registrations violated the Free Speech Clause of the First Amendment, but none have considered the completely separate right to petition the government for redress of grievances. Mr. David argues that the Petition Clause "may be a more promising mechanism that its Free Speech counterpart for mark owners seeking to challenge the Lanham Act's content based prohibitions on registration."

Ted Davis

Mr. Davis observes that "[c]ontent neutrality is ... as important to the right to petition as it is to other rights guaranteed by the First Amendment." The Government can violate the Petition Clause even if it has not suppressed speech in violation of the Free Speech Clause.

[I]n light of the disadvantages visited upon mark owners denied registration under Section 2(a)’s content-based prohibitions, the Amendment’s Petition Clause merits attention in litigation challenging the prohibitions’ constitutionality, even if that attention has not been forthcoming to date.

Read comments and post your comment here.

TTABlog comment: Again I thank The Trademark Reporter for granting permission to provide a link to this article, which is Copyright © 2015 the International Trademark Association and is reprinted with permission from The Trademark Reporter®, 105 TMR 852 (July-August 2015).

Text Copyright John L. Welch 2015.


At 11:14 AM, Anonymous Anonymous said...

I own a descriptive mark. I can't get a registration. Does this content-based prohibition impair my right to petition?


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