Federal Circuit Strikes Down Prohibition on Disparaging Trademarks

Decision here.

It's wrong imo and the logic imperils the entire trademark registration system as well as the prohibition against disparaging commercial speech (see Trademark Dilution Act for example.) Federal Circuit has just created a huge mess.

My earlier post on the subject here.

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    I am going to look back at your earlier post (5.00 / 1) (#4)
    by Peter G on Tue Dec 22, 2015 at 03:14:24 PM EST
    I know nothing about trademark law, in which I realize and respect that you have expertise, BTD. I need to recall why it is that you believe this should be a special context for constitutional purposes. On the face of it, it seems that denial of a government benefit of any kind on the basis of the perceived content of the message (as in the Redskins case) would be a blatant First Amendment violation. Which is what the Federal Circuit decision holds. Even more so on the basis that the government thinks someone else will be offended by the message despite the would-be speaker's opposite intentions (this case, where a group of Asian-American musicians want to trademark "The Slants," which is the ironically-intended name of their band).

    to that thread...

    Shorter BTD version: A trademark is not speech.


    Ok, I went back and reviewed (5.00 / 4) (#12)
    by Peter G on Tue Dec 22, 2015 at 08:20:43 PM EST
    I have to admit I had erased that painful experience of 18 months ago from my memory. BTD repeatedly insulting me (and bmaz) for asking sincere and thoughtful questions, based on not knowing any basic trademark law principles.  Eventually, in Comment 163 and a few just after that, BTD got around to explaining what he thought we ought to know but didn't. Now I'm ready to go read today's opinion. If I survive the 100 pages, I may be back with some thoughts on it.

    PTSD! We await your further thoughts. (5.00 / 1) (#13)
    by oculus on Tue Dec 22, 2015 at 08:43:55 PM EST
    The opinion(s) are long and serious (5.00 / 3) (#15)
    by Peter G on Wed Dec 23, 2015 at 10:30:27 AM EST
    Of the 12 judges on the U.S. Court of Appeals for the Federal Circuit -- the highest federal court with specialized intellectual property jurisdiction -- 9 agreed that their prior jurisprudence exempting trademark registration decisions from First Amendment scrutiny was wrong. They not only held the denial of registration to "The Slants" to be unconstitutional, but actually struck down the entire statute authorizing denial of registration to "disparaging" marks on the basis that it violated the First Amendment. Two judges wanted to go further and strike it down not only on that ground but also as unconstitutionally vague. Only one judge dissented, and then only by saying he would retain the existing "disparagement" jurisprudence for purely commercial trademarks (i.e., most of them) but would carve out an exception, giving First Amendment protection for the registration of otherwise-disparaging marks that also express a position on a political or social issue, such as the one before the court in this case. Drawing that line makes some sense to me, and would justify revoking the "Redskins" registration (because it is disparaging without conveying a political/issue position), while protecting the ironic social-issue intentions of the Asian-American rock band.

    through that decision.

    If anyone else reads the opinions and thinks (5.00 / 1) (#18)
    by Peter G on Wed Dec 23, 2015 at 06:12:20 PM EST
    I got my summary wrong, I'd sure like to know (hint, hint, BTD).

    Must be a fan of (none / 0) (#1)
    by MKS on Tue Dec 22, 2015 at 11:54:33 AM EST
    Washington "football team."

    Not gonna change our mascot or logo.

    Just a Matter of Time... (none / 0) (#2)
    by ScottW714 on Tue Dec 22, 2015 at 12:23:19 PM EST
    ...so hold on the good ole days when you could openly disparage an entire race guised as some sort of sports entitlement.

    It is rather funny that they supposedly revere Indians, yet they neglect how they feel and disparage them in name.  Not that it's uncommon, but at least people like Jackson didn't act like they were doing them some favor.

    If I were a Washington Negros fan, I mean Redskins fan, I would be more worried about my team not cracking 500 for more than half of their last 20 seasons and not winning more than one playoff game since 1991.


    As much as it pains me to say (none / 0) (#3)
    by sarcastic unnamed one on Tue Dec 22, 2015 at 02:11:48 PM EST
    the Skins look halfway decent this year...

    OT, I had to review the BTD previous thread on this to get back up to speed.

    I think his argument is persuasive.


    If By Halfway Descent... (none / 0) (#5)
    by ScottW714 on Tue Dec 22, 2015 at 03:31:54 PM EST
    ...you mean they will end at 500.

    I don't think any fan would call this year a successful one, but they will probably take the NFC East at 8-8.


    yup. Sad little division these days. (none / 0) (#6)
    by sarcastic unnamed one on Tue Dec 22, 2015 at 03:45:53 PM EST
    Sad because (none / 0) (#8)
    by MKS on Tue Dec 22, 2015 at 04:06:08 PM EST
    Romo went down.

    Fair comment. (none / 0) (#9)
    by sarcastic unnamed one on Tue Dec 22, 2015 at 04:08:13 PM EST
    Romo is just unlucky (none / 0) (#10)
    by MKS on Tue Dec 22, 2015 at 04:12:01 PM EST
    This era's Don Meredith.

    that are injured. Certainly a case can be made that is the mostest key player that's injured is Romo...

    Yeah, Cause the Cowboys... (none / 0) (#14)
    by ScottW714 on Wed Dec 23, 2015 at 09:17:18 AM EST
    ...we so great with him, which includes exactly one post season win in 2009. Romo is a good quarterback unless there is something on the line, any pressure and the guy folds like it's his job.

    I still blame Romo for the Packers not getting into the SB.  Had Romo not thrown a 4th quarter pick 6, the Giants would not have been in the playoffs.

    Disclaimer, Romo is from Burlington WI and I don't think I am the only Packer fan to consider him going to the Cowboys, an NFL trader of the highest order.


    "Romo is from Burlington WI" (none / 0) (#16)
    by sarcastic unnamed one on Wed Dec 23, 2015 at 11:15:24 AM EST
    that I did not know.