The Federal Circuit today held that Section 2(e) of the Trademark Act, which prevented the registration of immoral, scandalous, or disparaging marks, is unconstitutional.  In the view of the majority of the full Federal Circuit, the refusal to register trademarks on this basis constitutes unconstitutional viewpoint discrimination.  The applicant, the lead performer in an Asian-American dance rock band, had applied to register THE SLANTS.  The Trademark Office had refused to register the mark, and a Federal Circuit panel initially affirmed that refusal. 

The en banc decision today, however, reverses the panel and the Trademark Office.  This decision has serious implications for applicants seeking to register politically-incorrect mark, which before today were vigorously opposed by the Trademark Office.  The most famous rejection lately is the Trademark Office’s decision to cancel the registrations owned by the National Football League’s Washington, D.C. franchise.  That matter is currently pending in district court in Virginia.  Applicants who wish to register disparaging marks will be flocking to the Trademark Office after today’s decision.