I’m kind of tired of In re Tam also. But I have been a bit surprised that there has not been a more discussion, or as far as I can tell, hardly any, of a proposition pushed by the “amicus” brief filed by INTA, the International Trademark Association, on the en banc appeal — and how that proposition was most definitively rejected by the Federal Circuit in its December 22, 2015 opinion. That’s the question of whether a would be trademark registration, barred by Section 2(a) on the grounds of disparagement (or, actually, any grounds), can still find some solace — or at least a federal forum for enforcement — by making a claim under 15 U.S. § 1125(a), otherwise known as Section 43(a) of the Lanham Act, which prohibits any false designation or description regardless of whether a mark is registered. I use the scare quotes around “amicus” because with amici like this… well, in fact, I can and will…
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