In a unanimous decision handed down on June 19th, the U.S. Supreme Court struck down as unconstitutional a long-standing prohibition against federal registration of “disparaging” trademarks, finding that the this provision of the Lanham Act violates the Free Speech Clause of the First Amendment.

We have been tracking this case since 2013, when the TTAB refused registration of the mark  THE SLANTS for an Oregon rock band. The Patent and Trademark Office (PTO) denied the application under  Section  2(a) of the Lanham Act which prohibited the registration of marks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). The PTO found the mark to be a derogatory or offensive term for people of Asian descent. The Federal Circuit reversed the PTO, finding the disparagement clause of the Lanham Act unconstitutional, and the government appealed. Continue Reading Matal v. Tam: U.S. Supreme Court Holds Prohibition on Disparaging Trademarks Unconstitutional under First Amendment

In a decision that may have broader implications in the U.S. fashion industry, the U.S. Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc. (No. 15-866) ruled that the decorative elements on a cheerleading uniform can fall within the scope of articles protectable by copyright.

In the decision handed down on March 22, 2017, Justice Thomas, writing for the majority, ruled that the decorative elements on the cheerleading uniforms (shown below) met the threshold requirement of being  a “pictorial, graphic, or sculptural work” that can be granted a copyright if the copyrightable elements are sufficiently original and meet other requirements of the Copyright Act. Slip Op. at 10-11.

Cheerleader Uniforms Continue Reading Let’s Go, Big ©! Let’s Go! U.S. Supreme Court Backs Copyright Protection for Cheerleading Uniforms

The U.S. Supreme Court announced today that it will review whether the U.S. Trademark Office can deny registration of offensive trademarks or whether such prohibition violates the First Amendment. The dispute affects the constitutionality of Section 2(a) of the Lanham Act, which prohibits registration of such marks. The case originated in 2013 following the Office’s refusal to register THE SLANTS as a mark for an Oregon rock band on grounds that it was a derogatory slang phrase for people of Asian descent Continue Reading The SLANTS Trademark Will Play One More Gig: U.S. Supreme Court to Decide Constitutionality of Ban on Disparaging Trademarks