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Intellectual PropertyFeaturesLitigationLJN NewslettersThe Intellectual Property StrategistTrademarksUnited States Supreme Court

<i>Matal v. Tam</i> and Viewpoint-Discriminatory Prohibitions Against Federal Registration

By Theodore H. Davis Jr. and Samuel T. Kilb

In Matal v. Tam, 137 S. Ct. 1744 (2017), the Supreme Court held that a portion of Section 2(a) of the Lanham Act, 15 U.S.C. §1052(a), prohibiting the federal registration of potentially disparaging trademarks and service marks, violated the Free Speech Clause of the First Amendment. The eight justices participating in the case agreed that the prohibition constituted a viewpoint-based government restriction, but they divided evenly on the constitutional significance of that consideration. Whatever the resolution of that division ultimately may be, though, the outcome of the litigation is unlikely to affect the validity of most — but not necessarily all — of the Lanham Act's other prohibitions on registration.

Section 2(a) of the Lanham Act

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