Disparaging marks and the First Amendment
by Kate E. Rieber Under Section 2(a) of the Trademark Act, certain marks are restricted from registration if they contain immoral or scandalous matter; essentially, if the mark would offend a large portion of the general public, or considered vulgar, that is sufficient to deem it immoral or scandalous, and thus deprive it of federal registration. For example, the mark “BULLSH*T” (without the asterisk!) registration was refused based on 2(a), immoral or scandalous matter. This section further goes on to state that if the mark disparages or brings into “contempt or disrepute” persons (alive or dead), institutions, beliefs and/or national symbols, such mark will be refused registration. However, in In re Tam, Appeal No. 2014-1203 (Fed. Cir. December 22, 2015) [precedential], a recent appeal decided by the Federal Circuit, the Court determined that refusing to register marks considered “disparaging” violates free speech and the First Amendment. In Tam, the applicant sought to register [...]