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FeaturesThe Intellectual Property StrategistTrademarksUnited States Supreme Court

Supreme Court to Consider If Lanham Act's Name Trademark Prohibition Violates First Amendment

By Catherine Nyarady and Crystal Parker
October 01, 2023

The Lanham Act provides legal protections to trademark holders and, since 1946, it has prohibited the registration of any trademark containing the name, portrait or signature of a living person, except with their written consent.

The U.S. Supreme Court will consider whether this prohibition presents a conflict with the Free Speech Clause of the First Amendment. In particular, the court is positioned, in granting certiorari in Vidal v. Elster (Dkt. No. 22-704), to determine whether this provision of the Lanham Act violates the First Amendment by barring registration of a trademark that contains criticism of a government official or public figure.

This case has important implications not only for trademark registrations, but also potentially in determining collisions between trademark rights, rights of publicity, and freedom of speech considerations in future cases.

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