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<i>Matal v. Tam</i> and Viewpoint-Discriminatory Prohibitions Against Federal Registration
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
Section 2(a) bars the registration of several categories of marks, including those “consisting or comprising immoral … or scandalous matter, or … which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” This language has two distinct prongs, namely, whether a mark is “immoral or scandalous,” and whether a mark “may disparage”; only the latter prohibition was at stake in Tam. The two bans are closely related, and it is possible for a mark to be rejected under both. See, e.g., Boston Red Sox Baseball Club LP v. Sherman, 88 U.S.P.Q.2d 1581 (T.T.A.B. 2008) (refusing registration to SEX ROD mark for clothing). In addition, if a challenge is brought to an existing registration under these prongs of Section 2(a), the challenger must demonstrate the registration “was obtained” in violation of the statute, meaning that the challenger's showing must focus on whether the mark in question was scandalous, immoral, or potentially disparaging on the date it was registered (see, 15 U.S.C. §1064(3)), rather than when the merits of the challenge are decided.
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