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Supreme Court Rules Disparagement Clause of Lanham Act Is Unconstitutional

The U.S. Supreme Court has today held in Matal v. Tam that the disparagement clause of the Lanham Act prohibiting the registration of trademarks that may disparage or bring into contempt or disrepute any persons, living or dead, 15 U.S.C. 1052(a), violates the Free Speech Clause of the First Amendment, and is therefore unconstitutional. The Court concluded that the disparagement clause applies to marks that disparage the members of an ethnic or racial group, that trademarks are private and not government speech, and that the disparagement clause is impermissible viewpoint-based discrimination since it denies registration to any mark that is offensive to a substantial percentage of the members of any group. Guidelines from the United States Patent and Trademark Office (USPTO) will likely be issued in the near future discussing how applications for registration of such trademarks will be handled. A link to the Supreme Court opinion can be found here.