Last week the U.S. Supreme Court agreed to hear Mr. Simon Tam’s arguments and review the Court of Appeals for the Federal Circuit’s majority decision striking as unconstitutional Lanham Act Section 2(a)’s bar against the federal registration of disparaging matter, so it will decide the following issue, once and for all:
“Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.”
As you may recall, Tiffany previously wrote how Dan Snyder’s Washington D.C. NFL franchise asked to have its district court loss and appeal jump over the 4th Circuit Court of Appeals to go directly to the Supreme Court, if the Court were to decide to hear the Tam case.
As much stock as the team has put in the constitutional challenge to defend its several R-Word registrations, found offensive and disparaging to Native Americans, I suspect Mr. Snyder and his lawyers don’t relish the idea of sitting on the sidelines while Mr. Tam’s counsel argues the constitutional issue to the Court.
Earlier today the Supreme Court denied the team’s request, so Snyder’s team of lawyers will have to sit out for that important oral argument, although I suspect they’ll be one of many to submit a written amicus brief, as a “friend of the court.”
Why doesn’t Dan Snyder instead focus on being another kind of friend and get on the right side of history? And, doesn’t Mr. Snyder’s refusal to ever consider a name change, even after losing the registrations, actually undermine his Free Speech challenge?
As you know, my view is that Section 2(a) of the Lanham Act should be upheld as constitutional:
- 2(c) or Not to See Political TM Speech?
- Will USPTO Director Michelle Lee’s Signature Adorn a SLANTS Certificate of Registration?
- On Slanted Arguments and Red Herrings
- What Does the Trademark Registration Say?
- Trademarks That Violate Public Policy
- Trademark Disparagement Kills the R-Word
Stay tuned for more and let’s hope that Georgetown Law School Professor Rebecca Tushnet’s insights on the constitutionality of Section 2(a) carry the day at the Court.