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Government Cannot Deny Disparaging Trademarks, Federal Circuit Rules

The Lanham Act, a federal law that denies any trademark found to be disparaging, was ruled unconstitutional Tuesday by federal justices.
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On Tuesday, a trademark case making its way through the U.S. Court of Appeals for the Federal Circuit finally reached its conclusion – in a 10-2 decision, the Court ruled section 2(a) of the Lanham Act, which provides for the cancellation or denial of a trademark if it is found disparaging, is unconstitutional.

The case was brought by an Asian American band called “The Slants,” whose trademark application was denied in 2010 as disparaging to people of Asian descent.

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For the past 23 years, the Washington football team has been duking it out with Native Americans in a number of legal forums, with the most recent court ruling out of the U.S. Federal Court for the Eastern District of Virginia invalidating the team’s trademarks on the basis that the marks disparage Native Americans.

The NFL has appealed Pro-Football, Inc. v. Blackhorse to the U.S. Court of Appeals for the Fourth Circuit, most recently arguing that banning disparaging marks is unconstitutional. The NFL’s opening brief listed several pornographic and vulgar terms that were granted trademark privilege in defense of their own disparaging mark. 

“The Slants” victory is not binding on the Fourth Circuit, but a split has now been created. The Federal Circuit has invalidated part of the Lanham Act, in an en banc review with all twelve judges weighing in. A provision of the Lanham Act was held to violate the fundamental right of freedom of speech.

If the case is appealed and accepted for review by the U.S. Supreme Court, the Lanham Act will face constitutional scrutiny by the highest court. If not, the Federal Circuit ruling will be the most recent review, and the Fourth Circuit will be left to decide if the “Slants” decision is persuasive.