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Federal Circuit's Opinion In <i>In re Tam</i>
Among the most treasured and jealously guarded freedoms in the United States is freedom of speech. In the course of protecting that freedom, U.S. courts have found themselves permitting almost all manner of speech, even that which is arguably offensive or deplorable. Recently, the U.S. Supreme Court has given ever greater deference to individuals' and groups' rights to express themselves. Whether permitting protests at soldiers' funerals (see, Snyder v. Phelps, 562 U.S. 443 (2011)), or depictions of animal cruelty (see, U.S. v. Stevens, 559 U.S. 460 (2010)), the Court has of late consistently erred on the side of protecting speech.
Notwithstanding this over-arching commitment to an expansive freedom of speech, until quite recently there was still at least one area of federal law governed by notions of decency and an aversion to offensiveness: trademark law. According to 15 U.S.C. '1052(a), the United States Patent and Trademark Office (USPTO) will not register a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage ' persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute ' .” Under this provision, many marks have been refused registration because of their offensive, scandalous, or disparaging nature. See, e.g., In re Geller, 751 F.3d 1355 (Fed. Cir. 2014) (“STOP THE ISLAMISATION OF AMERICA”); In re Lebanese Arak Corp., 94 U.S.P.Q.2d 1215 (T.T.A.B. 2010) (“MORMON WHISKEY”); In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071 (T.T.A.B. 2008) (“ABORT THE REPUBLICANS”). Perhaps the most widely-discussed cancellation of a registration on the ground that the mark is immoral or scandalous is that involving the WASHINGTON REDSKINS team name. In Pro-Football, Inc. v. Blackhorse, 62 F.Supp.3d 498 (2014), No. 1-14-CV-01043-GBL, 2015 WL 4096277 (E.D. Va. July 8, 2015), the district court held that REDSKINS may disparage Native Americans, and for that reason, the Washington Redskins football team was not entitled to a federal registration for its various “REDSKINS” marks. This matter is currently on appeal to the Fourth Circuit.
In Re Tam: A Sea-Change
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