Free Speech: Prohibition on Registering Disparaging Marks is Unconstitutional, Federal Circuit Rules

By Dennis Crouch In re Tam (Federal Circuit 2015) (en banc) Big trademark case from the Federal Circuit. Judge Kimberly Moore filed the majority opinion holding that the statutory prohibition against registration of “disparaging marks” is an unconstitutional governmental regulation of speech. This issue has been coming to a head for many years, and this decision will likely impact the parallel Washington Redskins dispute. There would be a good chance for Supreme Court review of the case if the government presses its position. However, it is not clear to me that the government will do so. The majority writes: The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for…