In Case Involving The Name of a Band, The U.S. Supreme Court Rules Disparagement Clause of Lanham Act Unconstitutional

Matal v. Tam, No. 15-1293 (U.S. June 19, 2017)

The United States Supreme Court ruled that the disparagement clause of the Lanham Act was unconstitutional under the Free Speech Clause of the First Amendment.  The disparagement clause of the Lanham Act, Section 2(a), prohibited the registration of trademarks that my, “disparage ... or bring ... into contemp[t] or disrepute” any “persons, living or dead.” 15 U.S.C. §1051(a).

An Asian-American rock band, “The Slants,” were refused registration of their band name based on a 2(a) rejection that “the slants” is a derogatory term for Asians. The Supreme Court held that the disparagement clause was not narrowly drawn enough to prevent trademarks that support discrimination. The court stated that the clause, “reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”