On June 19, the United States Supreme Court provided a well-needed reminder of the scope and breadth of the freedom of speech granted by the First Amendment to the United States Constitution. The court struck down the provision of the Lanham Act, known as the “disparagement clause,” which has governed trademark registration for the past 71 years. Matal v. Tam, 137 S.Ct. 1744 (2017); 15 U.S.C. §1052(a)(1946). The court championed the principles of the Free Speech Clause to the First Amendment holding that “[s]peech may not be banned on the ground that it expresses ideas that offend.” Matal, 137 S.Ct. at 1751.
In the case, Matal v. Tam, a musical rock band attempted to register as a trademark its name, “The Slants,” which was denied by the Patent and Trademark Office (PTO) under the Lanham Act for being disparaging to persons of Asian descent. The relevant provision of the disparagement clause of the Lanham Act, 15 U.S.C. 1052(a)(1946), states that:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— (a) Consists of … matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (Emphasis added.)
