WIPR survey: Readers weigh in on Slants trademark dispute
WIPR readers have said that section 2(a) of the Lanham Act is not “facially invalid under the free speech clause of the First Amendment”, in a reference to the In re Tam trademark case.
In September, the US Supreme Court revealed that it would take up the dispute, which centres on disparaging trademarks.
Under current laws, trademarks that are likely to disparage people, institutions or beliefs are barred from registration under section 2(a) of the Lanham Act.
The Supreme Court will provide guidance on whether disparaging terms can be registered as trademarks or whether refusing registration is in violation of First Amendment rights.
In December last year, an en banc US Court of Appeals for the Federal Circuit ruled that the US Patent and Trademark Office’s (USPTO) decision to deny The Slants a trademark for its name violated its First Amendment rights.
Answering the latest survey question, 55% of WIPR readers said that the Lanham Act is not facially invalid under the First Amendment, an issue which the Supreme Court is set to decide in the case.
One reader said: “There is a distinction between ‘commercial free speech’ and ‘free speech’ under the First Amendment.”
Another reader added: “Section 2(a) violates the ability to navigate identity politics and will have a disproportionate impact on the free speech rights of marginalised groups with fewer resources.
Other readers had different views.
One said: “The USPTO isn’t team America moral police. The market and other legal mechanisms should decide what is disparaging and what is not.”
Another added: “Preventing a party registering an offensive term as a trademark neither prevents them using the term as a trademark nor prevents them using the term commercially. There is no freedom of speech issue.”
For this week’s survey question, we ask: “Last week WIPR reported that Federal Circuit Judge Haldane Mayer said that ‘most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice v CLS Bank sounded the death knell for software patents’. Do you agree?”
