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Supreme Court will review law against disparaging trademarks

Colorado businesses are usually allowed to register any of their trademarks as long as no other party has already done so. However, the disparagement provision of the Lanham Act states that a request for trademark registration may be refused if the content of the trademark may disparage persons, institutions, beliefs or national symbols.

An ongoing trademark dispute is bringing the disparagement provision of the Lanham Act into question, and the U.S. Supreme Court will soon decide whether the provision is constitutional. On Sept. 29, the Supreme Court voted to hear a case that was brought forward by the founder of a rock band called "The Slants". The band member is arguing that the U.S. Patent and Trademark Office's refusal to register a trademark for his band name violated his First Amendment right to free speech.

The founder named his rock band after a derogatory term for Asian Americans because he wanted to reappropriate the term. When the band was refused a trademark, the band founder challenged the refusal in court. In December 2015, the U.S. Court of Appeals for the Federal Circuit ruled in a 9-3 en banc panel decision that the disparagement provision of the Lanham Act is facially invalid and a violation of the First Amendment.

A business may have a better chance of receiving approval for its trademarks if it works with an attorney before filing an application. An intellectual property attorney can often conduct a search in order to ensure that the names and logos are original enough to be trademarked.

Source: The National Law Review, "Supreme Court to Review Registrability of Disparaging Trademarks," Paul Devinsky, Oct. 27, 2016

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