Federal Circuit Rules Disparagement Clause of §2(a) of the Lanham Act Unconstitutional 

January, 2016 - Philip G. Hampton, II, Scott Benfield, Alexander B. Lutzky

The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), in In re Simon Shiao Tam, held the seventy-year old disparagement clause of Section 2(a) of the Lanham Act unconstitutional on December 22, 2015. Under Section 2(a), a trademark shall be refused registration if it consists of “matter which may disparage…persons, living or dead… or bring them into contempt, or disrepute.” The en banc holding in In re Simon Shiao Tam vacated the Trademark Trial and Appeal Board’s (“TTAB”) decision that the trademark for THE SLANTS is unregisterable. The decision overturns more than thirty years of precedent, paving the way for additional challenges to the constitutionality of other Lanham Act exclusions, including marks denied registration because they were believed to be scandalous or immoral.

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