Supreme Court of the United States Finds Prohibition on Registration of Offensive Names Unconstitutional

In Matal v Tam, the Supreme Court of the United States (the Court) unanimously found that section 2(a) of the Lanham Act was unconstitutional for violating a person’s First Amendment rights under the US Constitution. 

Section 2(a) of the Lanham Act prohibits the registration of a trademark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; […]” (the Disparagement Clause).

Justice Alito, writing for the Court, found that trademarks are acts of private speech, rather than government speech, even if they appear in a Register maintained by the government. Therefore, Justice Alito found that the Disparagement Clause was an unconstitutional restriction of private speech.

Justice Alito, joined by Justices Thomas, Breyer, and Chief Justice Roberts, found that interest served by the Disparagement Clause is in preventing speech expressing ideas that offend, and that this idea “strikes at the heart of the First Amendment.” Additionally, Justice Alito found that the government’s prohibition on disparaging trademarks was not drawn sufficiently narrowly to serve the government’s interest in protecting the orderly flow of commerce from disruption caused by trademarks that support discrimination.

Justice Kennedy, in a concurring opinion in which Justices Ginsberg, Sotomayor, and Kagan joined, found that the Disparagement Clause was “viewpoint discrimination”, in which the government singled out a subset of messages for disfavour based on the viewpoints expressed.

The decision has major implications for ongoing disputes involving offensive trademarks, including the dispute involving the Washington Redskins’ trademark. For previous E-TIPS^® coverage of the Redskins case, see here and here.

Summary By: David Bowden