In a highly anticipated ruling, the Supreme Court of the United States recently held that the disparagement clause of federal trademark law violates the First Amendment. This disparagement clause refused federal trademark registration for trademarks that are likely to disparage people, institutions, or beliefs.
All eight participating justices agreed that trademarks are private, not government, speech, and that the disparagement clause discriminates based on viewpoint. Describing it as a “happy-talk clause” “mandating positivity” – because it permits an applicant to register a positive or benign mark, but not a derogatory one – the Court found that the disparagement clause constitutes viewpoint discrimination that cannot withstand constitutional scrutiny.
Join Antigone Peyton and Kandis Koustenis with Decoding IP as they discuss this important decision, which will also affect the widely-publicized Washington Redskins case currently on appeal in the Fourth Circuit, and the future of the trademark’s similar ban on “scandalous” trademarks.