Supreme Court Allows "Disparaging" Trademarks

June 19, 2017

The United States Supreme Court, in a unanimous 8-0 decision, today ruled unconstitutional a federal law prohibiting the registration of trademarks that may "disparage…or bring… into contemp[t] or disrepute" any "persons living or dead".

Justice Alito, writing the opinion for the Court in Matal v. Tam, 582 U.S. __ (2017), stated that trademarks are private speech, not government speech. Merely affixing a governmental seal of approval by registering a trademark does not amount to government speech; otherwise, the government could potentially silence or minimize the expression of viewpoints it does not favor. The Court held that USPTO examiners may not reject applications based on the viewpoint that the mark appears to express. Especially since trademarks involve commercial speech, evaluations of applications should be viewpoint neutral.

The ruling provides some clarity regarding the potential trademark registrations of potentially offensive marks.