Wednesday, April 20, 2016

USPTO Files Petition for Writ of Certiorari in THE SLANTS Case

The USPTO today filed a petition for a writ of certiorari (here) to the U.S. Court of Appeals for the Federal Circuit, seeking Supreme Court review of the CAFC's decision in In re Tam 117 USPQ2d 1001 (Fed. Cir. 2016), deeming the disparagement provision of Lanham Act 2(a) unconstitutional as a violation of the Free Speech Clause of the First Amendment.

The question presented is as follows:

Whether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment.

Read comments and post your comment here.

Text Copyright John L. Welch 2016.


At 9:45 AM, Anonymous Anonymous said...

Interesting graphic. I just noticed that the silhouettes of the squadron of planes in the upper background are US P-38s . . . which were used against, not by, Japan. Was this a historical goof by the designer or does it reflect an irony too subtle for my simple mind?

At 11:01 AM, Anonymous Anne Gilson LaLonde said...

Your treatment is much more accurate than the "breaking news" bulletin from Law360:

BREAKING: Offensive Trademark Ban Headed To High Court

Well, sort of.

At 4:19 PM, Anonymous Anonymous said...

I guess they felt like they had to do it, but what comes to mind is, "be careful what you wish for", instead of using common sense, and not political correctness, in applying 2a

At 8:44 AM, Anonymous Michael McHale said...

I think it's funny that people are talking about free speech in the same sentence that they're talking about restricted speech. A trademark is restricting speech by its nature. It's literally the government endorsing the limit of speech.

At 1:04 PM, Anonymous Rob said...

I agree with the CAFC's result but not with the reasoning. The USPTO misuses Sec. 2(a) as a tool to force political correctness and make it part of trademark law. When the USPTO doesn't want to apply a ban, such as under 2(b), it gives it the narrowest possible interpretation, whereas when it does want that, the ban is suddenly all-encompassing. The progressives heading the USPTO need to go back to applying trademark law rather than their own political agendas.

At 8:13 PM, Blogger John L. Welch said...

Take a look at the Old Glory Condom case, which I discussed here:

When the PTO allowed registration of that mark, an Ohio Congressman railed against the USPTO. So I guess you can't please all of the people all of the time.

At 12:14 PM, Anonymous Anonymous said...

I keep coming back to that old rock group the DEAD KENNEDYS. Note that their trademark application made it through to registration (even with Uncle Ted's passing) and now has 8&15 - I remember them the first time around in the late 70's - I don't recall hearing the Kennedy family scream out loud on this one. Why doesn't Director Lee just meet face to face with Tam and tell him that she finds his mark offensive instead of taking this to SCOTUS. Same for the native Americans in the Redskins case. I am native American and I have never been even a bit offended by the Redskins logo (which BTW looks strangely similar to the back side of the old US buffalo head nickel.... just sayin'. So I guess for the US government to use the Indian head on circulated coinage but not the Washington Redskins). PS: Go Skins!


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