Updated:
June 19, 2017

Whether the Lanham Act’s clause banning the registration of “disparaging” trademarks violates the First Amendment.

Section 2(a) of the Lanham Act (the “disparagement clause”) bars the Patent and Trademark Office from granting registration to any trademark deemed scandalous, immoral, or disparaging to any person, institution, belief, or national symbol. Punk rocker Simon Tam is the founder of the all-Asian American band “The Slants,” and sought to register the band’s name. The registration was denied because the PTO’s trademark examiner found the band’s name disparaging to Asian Americans—after the trademark examiner determined the band’s ethnicity.

In an amicus brief filed with a coalition of Asian American advocacy groups, the ACLU, ACLU of Oregon, and ACLU of the National Capital Area argued that the disparagement clause violates the First Amendment’s prohibition on government regulation of speech based on viewpoint. On June 19, 2017, the Supreme Court struck down portions of the Lanham Act, holding that The Slants’ First Amendment rights were violated when the government claimed the right to control their speech in exchange for offering a trademark. 

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