The U.S. Court of Appeals for the Federal Circuit, sitting en banc, issued a ruling that Section 2(a) of the Lanham Act violates the First Amendment because it prohibits registration of a “disparaging” trademark.

The appeal was brought by the members of a band “The Slants,” after the TTAB affirmed the refusal to register their band name because the name is likely to be viewed as disparaging to persons of Asian descent.  That ruling was based on Section 2(a) of the Lanham Act which prohibits registration of marks that may disparage persons, institutions, beliefs, or national symbols. 

On appeal, the Federal Circuit ruled that Section 2(a) is an unconstitutional violation of the First Amendment.   The Court stated the First Amendment protects even hurtful speech.  Although the government may regulate commercial speech, the Court found that Section 2(a) was nonetheless subject to First Amendment standards because trademarks not only serve as commercial speech, but also have expressive aspects. 

The Washington Redskins are currently making the same arguments in their appeal before the Fourth Circuit Court of Appeals in their fight to register the “Redskins” trademarks.  Although the Fourth Circuit is not bound by the Federal Circuit ruling, if the Fourth Circuit disagrees with the Federal Circuit and rules that Section 2(a) is constitutional, this issue is likely to go to the Supreme Court.

In re: Simon Shiao Tam, Case No. 14-1203, U.S. Court of Appeal for the Federal Circuit (Dec. 2015).