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Federal Circuit to Decide On First Amendment Constitutionality of Barring Disparaging Trademark Registration
On April 27, 2015, the Federal Circuit voted, sua sponte, to vacate its opinion of April 20, 2015 in In re Simon Shiao Tam, Case No. 2014-1203, and to reconsider en banc whether the Lanham Act baron registration of disparaging marks violates the First Amendment.
The Federal Circuit had issued a unanimous opinion by a panel of Judges Lourie, Moore, and O'Malley, which affirmed the Trademark Trial and Appeal Board's (TTAB's) decision to refuse to register Tam's mark “THE SLANTS”. In its opinion, the panel first applied disparagement analysis to the word “slant,” based on: 1) its likely meaning; and 2) whether it “may be disparaging to a substantial composite of the referenced group.” Slip op. at 7. The panel found that the “definitions in evidence universally characterize the word 'slant' as disparaging, offensive, or an ethnic slur when used to refer to a person of Asian descent.” Id. Further, based on several publications and articles the panel found “substantial evidence” for “the Board's finding that the mark is disparaging to a substantial composite of people of Asian descent.” Id. at 8.
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