I’m continuing to believe Congress has the power under the Commerce Clause to distance itself from and not be viewed as endorsing certain subject matter on public policy grounds, especially when Certificates of Registration are issued “in the name of the United States of America.”
Having said that, I’m thinking the federal government has done a less than stellar job of articulating and advocating for this right, which may very well explain the current state of affairs.
The CAFC did not decide whether the “scandalous and immoral” clause constitutes impermissible viewpoint discrimination, instead it seized on mere content as lower hanging fruit for invalidation.
The problem with focusing on content alone is that it proves too much. Trademarks, by definition, are made up of content, and many other provisions of federal law limit the right to register based on content, so, if this analysis holds, what additional previously-thought-well-settled provisions of federal trademark law will fall? Importantly, some even allow for injunctive relief: tarnishment.
Asked before, but will dilution by tarnishment survive this kind of strict free speech scrutiny? According to the CAFC in Brunetti, strict scrutiny applies even without viewpoint discrimination.
It’s hard to imagine the famous Ford logo, consisting of the distinctive script and blue oval, not being considered sufficiently famous and worthy of protection against dilution — without a showing of likelihood of confusion. But, given Tam and Brunetti, is a dilution by tarnishment claim even viable, or is it just another federal trademark provision about to fall, in favor of free speech.
Just because Mr. Brunetti may be anointed with a federal registration for the word “fuct” doesn’t mean his depiction of the word in the above style and design is lawful for use or registration.
So, if Ford does pursue the Brunetti t-shirt, under a dilution by tarnishment theory, and if it were considered to be a viable claim, in the end, might Mr. Brunetti be the one, let’s say, uniquely suited — to vanquish tarnishment protection from the Lanham Act?
Or, will another potty-mouth brand be the one to seriously probe the constitutionality of dilution protection against tarnishment?
Last but not least, and sadly for me, last Friday also was a big day for Mr. Daniel Snyder too.