Prohibition Against Disparaging Trademarks Unconstitutional

The Lanham Act’s prohibition against disparaging trademarks violates the First Amendment, the U.S. Court of Appeals for the Federal Circuit, sitting en banc, ruled Dec. 22 (In re Tam, 2015 BL 420488, Fed. Cir., 2014-1203, 12/22/15.

The decision represents a shift in understanding of how the First Amendment applies to trademarks. While courts have previously considered trademarks as commercial speech deserving of less First Amendment protection, the Federal Circuit held that trademarks have expressive qualities that warrant the full range of free-speech protection.

Observers are closely watching the case, as it concerns many of the same issues in ...