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Abstract
The Lanham Act was enacted by the US Congress in 1946 with the overall purpose of regularizing the nation’s registration and use of trademarks. Despite undergoing a number of amendments since its enactment, for the past 70 years, the Act has continued to provide key federal protections against not only the unlawful or deceptive use of trademarks. It also strictly forbad the registration of marks that reasonably could be considered immoral, scandalous, contemptuous, or disparaging. Though hailed by some as an important protection against hateful speech in the public marketplace, others have questioned whether the statute violates the constitutional right to Freedom of Speech. This year, the US Supreme Court issued a ruling that put an official end to this legal controversy. This article provides a detailed description of the case that led to this landmark decision and discusses some of the potential implications for trademarking potentially disparaging brand names.
Notes
This article has been republished with minor changes. These changes do not impact the academic content of the article.
1. For full documentation on this first application, see USPTO serial number: 77952263<http://ttabvue.uspto.gov/ttabvue/v?qs=77952263>.
2. USPTO serial number 77952263, Document 4: <http://ttabvue.uspto.gov/ttabvue/v?qs=77952263>.
3. USPTO serial number 77952263, Document 2: <http://ttabvue.uspto.gov/ttabvue/v?pno=77952263&pty=EXA&eno=4>.
4. USPTO serial number 85472044, Document 9: <http://ttabvue.uspto.gov/ttabvue/v?pno=85472044&pty=EXA&eno=9>.
5. USPTO serial number 77952263, Document 5: <http://ttabvue.uspto.gov/ttabvue/v?pno=77952263&pty=EXA&eno=5>.
6. For the full US Court of Appeals for the Federal Circuit decision, see: https://e-foia.uspto.gov/Foia/RetrievePdf?system=FCA&flNm=14-1203_2
7. The ruling can be found here: <https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf>.
8. Although some legal scholars anticipated the SCOTUS decision, others contended that the Lanham Act was an imperfect but practical protection (e.g. Kiser Citation2011; Stern Citation1999). As Bonadio (Citation2015) reasoned: “judges have the right and duty to restrict such freedom by refusing registration if that is necessary to protect competing interests, including: morality, decency, public order, and minorities’ rights” (60).
9. For a historical discussion of trademarks and US racism, see Hinrichsen Citation2012.
10. The databank can be found here: <https://www.uspto.gov/trademarks-application-process/search-trademark-database>.
11. For a discussion of the history of this football team name, see Smith Citation2011; Ver Steeg Citation2016.
12. For a legal description and discussion of this evidence, see: Thomas Citation2014.
13. According to Hopkins and Joraanstad (Citation2015), the number of mascots with Native American reference has dropped from c. 3000 to less than 1000. For an excellent discussion of objectionable sport team designators, see Nuessel Citation1994.
14. It is exceedingly rare for an applicants‘s appeal to result in the reversal of an examining attorney‘s decision. In an extensive search of the USPTO, Davis was only able to locate one such instance (118).