Section 2(a) of the Lanham Act allows the Patent and Trademark Office (PTO) to refuse to register immoral, scandalous, or disparaging marks. 15 U.S.C. §1052(a). The First Amendment of the U.S. Constitution, however, says that “Congress shall make no law…abridging the freedom of speech.” Doesn’t the First Amendment, therefore, render Section 2(a) of the Lanham Act unconstitutional?
Today, and for at least the last 35 years, the answer is (and has been) no. This, however, may change, given the U.S. Court of Appeals for the Federal Circuit’s per curiam order on April 27, 2015, vacating a prior panel opinion and declaring that it shall address en banc the following issue: “Does the bar on registration of disparaging marks in 15 U.S.C. §1052(a) violate the First Amendment?”1
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