Last week, I waited in line and was fortunate to be one of the last ones allowed into the court room of the Supreme Court to sit for the full hearing in Tam v. Lee, the case involving an application to register THE SLANTS trademark with the USPTO. The case itself involves First Amendment law as much or more than trademark law. The issue at hand is whether to uphold the decision of the Federal Circuit Court of Appeals which struck down 15 U.S.C. §1052(a), the section of the code that prevents federal registration of “disparaging” trademarks at the USPTO.
My gut reaction (predictions here are quite difficult) is that Court is likely to overturn the appellate decision and to continue to allow the USPTO to forbid registration of disparaging trademarks. A few reasons:
- The statute has stood for decades until the recent action by the Federal Circuit.
- There is no analogous “bucket” of 1st Amendment cases for this one to fit nicely within; this government program is unique.
- The questions from the Court appeared to indicate a lot of dissatisfaction with and weaknesses in the arguments from both sides.
- The Court did seem to latch onto the fact that brand owners have rights and protections (although they are not the same) even without trademark registration.
- The “Redskins” case hangs over this one. Does the Court wish to be on the side of history that permits registration of the Redskins brand name, or the side that believes certain words are so harmful that the government should not back them?
- Could the Court possibly allow the statute to stand but direct the USPTO to work on better standards for evaluating which marks are ‘disparaging’? This middle ground may not be simple, but the Court can likely do whatever it wishes.
That is simply my instinct. I very well may be wrong.