Legal Alerts Jul 6, 2017

Supreme Court Rules Trademarks are Protected by First Amendment's Free Speech Clause

Trademarks Not Government Speech

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Trademarks do not constitute government speech, the U.S. Supreme Court recently ruled. Instead, trademarks qualify as speech protected by the First Amendment Free Speech Clause. As a result, the government cannot reject a trademark simply because of the viewpoint it is trying to express, even if the viewpoint is offensive in nature. The Court found that “to permit viewpoint discrimination in this context is to permit government censorship.” The ruling is of particular concern to local governments who care about the scope of the government speech doctrine, which is not protected by the First Amendment and allows governments to exclude speech in certain cases.
 
Although federal law does not create trademarks, Congress passed the Lanham Act to create a uniform standard for protecting trademarks and encouraging the “free flow of commerce.” A provision in the Lanham Act — the “disparagement clause” — barred trademarks defaming persons, institutions or beliefs.
 
In the case, Matal v. Tam, the lead singer of “The Slants” attempted to trademark the name of his band. The U.S. Patent and Trademark Office rejected his application, consistent with the “disparagement clause” of the Lanham Act finding that “The Slants” was a derogatory and offensive term and would not receive government sanctioned benefit of trademark protection.
 
Government speech is not subject to the Free Speech clause restrictions. As such, the government does not always need to maintain a neutral viewpoint. If trademarks were considered government speech, the government could reject a trademark based on the viewpoint it appears to express.
 
Since the Court in Matal held that registered trademarks are not government speech, it does not matter what viewpoint the trademark is expressing. Although the government has an interest in preventing offensive speech, this interest does not come at the cost of infringing on a citizen’s First Amendment rights. As Justice Samuel Alito stated in the opinion, “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar grounds is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” With this sentiment in mind, the government no longer has the ability to reject trademarks for representing disparaging viewpoints.
 
If you have any questions about this decision or how it may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Municipal Law or Intellectual Property practice groups, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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