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Lanham Act Constitutional Challenges

McDermott Will & Emery

Rebel Libertarians Aren’t at Liberty to Violate Lanham Act

In a case that required the US Court of Appeals for the Sixth Circuit to articulate the boundary between the Lanham Act and the First Amendment when the trademark in question is the name of a political party, the Court found...more

Haug Partners LLP

Supreme Court Upholds Validity of Names Clause in Trump Too Small Decision

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Referred to as the “names clause”, the Lanham Act prohibits registration of a mark that consists of or comprises a name that identifies a particular living individual without written consent.1 This includes full names,...more

Akerman LLP

Content-Based but Viewpoint-Neutral: Federal Trademark Law “Names Clause” Withstands Constitutional Challenge

Akerman LLP on

There has long been a tension between the Free Speech Clause of the First Amendment of the U.S. Constitution and federal trademark law. In two relatively recent Supreme Court trademark cases, the First Amendment won, enabling...more

Dorsey & Whitney LLP

The Supreme Court Update - June 24, 2024

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Today, the Supreme Court of the United States granted certiorari in seven cases: United States v. Skrmetti, No. 23-477: This case concerns the constitutionality of state laws banning gender-affirming medical care for...more

Irwin IP LLP

Supreme Court Rules: Elster Can Say "Trump Too Small" But Can't Trademark It!

Irwin IP LLP on

Vidal v. Elster, 602 U.S. (2024) - In a landmark decision affirming longstanding principles of trademark law, the United States Supreme Court ruled that the Lanham Act’s names clause does not violate the First Amendment,...more

Bradley Arant Boult Cummings LLP

Trademarking History: Justices Uphold Names Clause, Clash Over Reasoning

On June 13, 2024, the Supreme Court handed down its decision in Vidal v. Elster, a case that pitted trademark law against the First Amendment’s free speech protections. While the Court unanimously upheld the Patent and...more

McDermott Will & Emery

Supreme Court Upholds Constitutionality of Lanham Act’s Names Clause

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In Vidal v. Elster, a unanimous Supreme Court of the United States reversed the US Court of Appeals for the Federal Circuit’s decision, holding that the Lanham Act’s names clause does not violate the First Amendment or...more

Troutman Pepper

Supreme Court Upholds Names Clause in Trademark Law, Emphasizing Historical and Traditional Foundations

Troutman Pepper on

In a landmark decision written by Justice Clarence Thomas, the Supreme Court has unanimously upheld the constitutionality of the Lanham Act’s provision that prohibits the registration of trademarks consisting of, or...more

Genova Burns LLC

Unanimous But Fractured: Supreme Court Upholds Rejection of “Trump Too Small” Trademark, With Little Guidance for the Future

Genova Burns LLC on

Last week, the U.S. Supreme Court decided in Vidal v. Ester, 602 U.S. ___ (2024) that the federal prohibition on registering trademarks that identify a living individual without their consent does not violate the First...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

SCOTUS Rules on "Trump Too Small"—Third Recent Ruling on First Amendment Implications for Lanham Act 

The June 13, 2024, U.S. Supreme Court decision in Vidal v. Elster made waves in the trademark community. All of the Court’s decisions are significant, and this matter was of particular interest because the decision marked the...more

Kilpatrick

Vidal v. Elster: The Supreme Court Affirms the Constitutionality of Section 2(c) of the Lanham Act

Kilpatrick on

In Vidal v. Elster, the Supreme Court addressed the constitutionality of Section 2(c) of the Lanham Act, which prohibits the registration as a trademark or service mark of any “name, portrait, or signature identifying a...more

Weintraub Tobin

(Podcast) The Briefing: SCOTUS to Determine if USPTO Refusal to Register TRUMP TOO SMALL is Unconstitutional

Weintraub Tobin on

The Supreme Court recently heard oral arguments in the case of Vidal v. Elster to determine whether the USPTO’s refusal to register the trademark “Trump Too Small” violates the applicant’s First Amendment rights. Scott Hervey...more

Weintraub Tobin

The Briefing: SCOTUS to Determine if USPTO Refusal to Register TRUMP TOO SMALL is Unconstitutional

Weintraub Tobin on

The Supreme Court recently heard oral arguments in the case of Vidal v. Elster to determine whether the USPTO’s refusal to register the trademark “Trump Too Small” violates the applicant’s First Amendment rights. Scott Hervey...more

Seyfarth Shaw LLP

Lanham Act May “Trump” First Amendment (For Once)

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In what appears to be a shift from prior decisions striking down portions of the federal Lanham Act on First Amendment grounds, the U.S. Supreme Court seems likely to rule against a trademark applicant seeking to register a...more

Katten Muchin Rosenman LLP

Is Trademark Law ‘Too Small' for the First Amendment? - Katten Kattwalk | Issue 25

During the 2016 presidential debate, Senator Marco Rubio taunted Donald Trump for having “small hands.” Now, more than seven years later, progressive activist Steve Elster is continuing his fight to trademark the phrase...more

Seyfarth Shaw LLP

SCOTUS To Examine Whether First Amendment “Trumps” Lanham Act

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The U.S. Supreme Court continues to show interest in trademark issues with its recent grant of certiorari in another case pitting the Lanham Act against the First Amendment....more

Epstein Becker & Green

How Big a Deal Is “Trump Too Small”? – SCOTUS Today

Epstein Becker & Green on

The question of whether a would-be trademark, “TRUMP TOO SMALL,” warrants a First Amendment exception to the Lanham Act’s prohibition on registering a living person’s name as a trademark without that person’s permission has...more

Dorsey & Whitney LLP

Supreme Court Will Review TRUMP TOO SMALL Trademark Registration Dispute

Dorsey & Whitney LLP on

The Supreme Court granted certiorari and will review the Federal Circuit’s opinion that Section 2(c) of the Lanham Act is unconstitutional as applied to a trademark for the term TRUMP TOO SMALL. The TRUMP TOO SMALL trademark...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

MarkIt to Market® - February 2023

Thank you for reading the February 2023 issue of Sterne Kessler's MarkIt to Market® newsletter. This month, we discuss Section 2(c) of the Lanham Act in relation to the Supreme Court's pending review of the TRUMP TOO SMALL...more

McDermott Will & Emery

“TRUMP TOO SMALL” Trademark Decision Leaves Big Questions

McDermott Will & Emery on

Revisiting jurisprudence touching on the Lanham Act and the First Amendment from the Supreme Court’s decisions in Matal v. Tam and Iancu v. Brunetti, the US Court of Appeals for the Federal Circuit held that applying Sec....more

Knobbe Martens

First Amendment Trumps Statutory Ban on Trademark Registration

Knobbe Martens on

IN RE STEVE ELSTER - Before Dyk, Taranto, and Chen.  Appeal from the Trademark Trial and Appeal Board. Summary: The Patent and Trademark Office violated the First Amendment by refusing to register the trademark TRUMP...more

Fenwick & West LLP

SCOTUS Gives a “FUCT” in Brunetti: First Amendment Supports “Immoral” or “Scandalous” Trademarks

Fenwick & West LLP on

On June 24, 2019, the U.S. Supreme Court, in Iancu v. Brunetti, struck down the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks. Justice Kagan wrote for the 6-3 majority, holding that the...more

McDermott Will & Emery

Immoral No More: SCOTUS Strikes Down Ban on Registration of Offensive Trademarks

In a 6–3 opinion, the Supreme Court of the United States affirmed a 2017 US Court of Appeals for the Federal Circuit decision holding the ban on registration of immoral or scandalous trademarks under the Lanham Act to be an...more

Dorsey & Whitney LLP

SCOTUS Paves the Way for FUCT Trademark, Causing a Bit of an Application Sh**storm at the USPTO

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“FUCT.”  You can pronounce it as four letters, one after the other.  Or you can pronounce it like Justice Kagan as the “past participle form of a well-known word of profanity.”  Either way, the word can be registered as a...more

Brownstein Hyatt Farber Schreck

Supreme Court Ruling Allows Registration of “Scandalous” or “Immoral” Trademarks

Last week, on June 24, 2019, the United States Supreme Court ruled that the Lanham Act’s “immoral or scandalous” bar to trademark registration constitutes viewpoint discrimination in violation of the First Amendment, and thus...more

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