First Amendment Trumps Trump

1st amendment section 2(c) trademark

On February 24, 2022, the Court of Appeals for the Federal Circuit held in In re Elster,[1] that Section 2(c) of the Lanham Act (15 U.S.C. §1052(c)) unconstitutionally restricts free speech.  In doing so, the Fed Circuit cleared the way for trademark applicants to utilize their marks used in commerce as a platform to comment …

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That Sucks! Otherwise Generic gTLD Still Non-Registrable Because Not Attached with Preceding Domain Name

1st amendment distinctiveness failure to function genericism trademark

On February 2, 2022, the Court of Appeals for the Federal Circuit affirmed in In re Vox Populi Registry Ltd.,[1] the decision of the USPTO’s Trademark Trial and Appeal Board (TTAB) refusing registration to .SUCKS as a service mark for Vox’s domain name registry services. However, the Fed Circuit agreed with the TTAB in that …

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Trademarks Post-Tam & Brunetti

1st amendment fed circuit watch section 2(a) trademark

Two recent U.S. Supreme Court decisions in Matal v. Tam,[1] decided in 2017, and Iancu v. Brunetti,[2] decided this past May, both dealt with registration of trademarks under 15 U.S.C. §1052(a) (§2(a)) that ran afoul of the First Amendment’s freedom of speech clause. 2(a) reads: No trademark by which the goods of the applicant may …

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SCOTUS Watch: Bar on Immoral and Scandalous Marks Violates First Amendment

1st amendment scotus watch section 2(a) trademark

On June 24, 2019, the U.S. Supreme Court handed down Iancu v. Brunetti,[1] dealing with the Lanham Act’s Section 2(a) bars to trademark registration’s collision against the First Amendment brick wall; the Justices in a 6-3 vote struck down the immoral and scandalous clause of §2(a) in a somewhat mixed-up and divided Court.  Brunetti is …

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Fed Circuit Watch: Lanham Act Section 2(a) Scandalousness Clause Deemed Unconstitutional

1st amendment fed circuit watch section 2(a) trademark

On December 15, 2017, the United States Court of Appeals for the Federal Circuit handed down its decision in In re Brunetti.[1]  In Brunetti, the Federal Circuit panel, consisting of Judges Moore, Stoll, and Dyk, held that although the FUCT trademark contained immoral or scandalous matter, it remained federally registrable as a trademark because of …

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The Slants’ Saga Ends: USPTO Registers Service Mark

1st amendment section 2(a) trademark

On November 14, 2017, six years to the day after the application was first filed with the USPTO which precipitated the landmark U.S. Supreme Court ruling in Matal v. Tam[1] striking down the disparagement clause of Section 2(a) of the Lanham Act, the USPTO has registered THE SLANTS service mark in International Class 41 for …

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USPTO Issues Exam Guidelines Consistent with Tam Decision

1st amendment section 2(a) trademark

On June 26, 2017, the United States Patent and Trademark Office issued an updated Examination Guideline 01-17, consistent with the recent Matal v. Tam, 582 U.S.___ (2017), ruling by the United States Supreme Court, and for which our analysis was the subject of a previous post.  In that decision, the Supreme Court held that the …

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SCOTUS Watch: Lanham Act’s §2(a) Disparagement Clause Struck Down

1st amendment section 2(a) trademark

By Brent T. Yonehara On June 19, 2017, the U.S. Supreme Court finally, and somewhat as expected, handed down its ruling in Matal v. Tam (formerly Lee v. Tam).[1]  By a unanimous vote, the Supreme Court struck down the Lanham Act’s §2(a) prohibition on registration of disparaging trademarks as a violation of the First Amendment’s …

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Washington Redskins Skinned: Effect of The TTAB’s Cancellation

1st amendment trademark

By Brent T. Yonehara INTRODUCTION There has been recent controversy regarding the use of the Washington Redskins trade name.[1] Today, the Trademark Trial and Appeal Board (TTAB) summarily cancelled six trademark registrations held by the Pro Football, Inc..[2] Many people, including President Obama, have objected to the continued use of the REDSKINS mark.[3] While there …

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CITIZENS UNITED v. FEC: THE CORRUPTION OF THE AMERICAN POLITICAL PROCESS THROUGH INDEPENDENT CORPORATE EXPENDITURES

1st amendment corporate law

By Brent T. Yonehara Introduction There are myriad reasons on how corporate special interests have decimated the American political system. Jack Abramoff traded gifts for votes and tax breaks in a scandal that rocked Congress in 2005.[1] Big Tobacco contributed $46.7 million to defeat a recent California ballot measure to tax cigarettes to fund cancer …

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