Ban on "Disparaging" Marks Unconstitutional

Federal Circuit Rules Ban on "Disparaging" Marks Unconstitutional

I’m sure you all recall the Washington Redskins ongoing battle with the Trademark Office (USPTO) regarding their long-standing trademark and the USPTO’s determination that the mark was disparaging.  In a turn of events, the Federal Circuit on December 22, 2015 held that the Section 2(a) of the Lanham Act prohibiting “disparaging” trademarks was unconstitutional.  The Lanham Act does not allow marks consisting of “immoral, deceptive, or scandalous matter” and the USPTO is tasked with making such determination.  The Federal Circuit considered the free-speech argument and ultimately determined that  the government regulation of such marks is equivalent to government regulation of expressive speech.  This should provide the Redskins with additional arguments in the ongoing saga.