Lanham Act’s Disparagement Clause Unconstitutional | Kennedy Law, P.C.

SCOTUS Rules Lanham Act’s Disparagement Clause Unconstitutional

Author: Stephen A. Kennedy

Date: 06/19/2017

The Supreme Court ruled in a unanimous decision this morning that the disparagement clause of the Lanham Act is an unconstitutional violation of the free speech clause of the First Amendment. Justice Neil Gorsuch did not participate in the 8-0 decision, as he joined the Court after oral arguments were heard in this matter.

The Court sided with the Asian American rock band The Slants in deciding that the Lanham Act’s disparagement clause, which previously prevented federal trademark registration of THE SLANTS band name, was unconstitutional. We have previously covered The Slants plight to trademark their band name here on our blog.


Justice Alito, who authored the opinion, found that “[the disparagement clause] offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” Alito continued, noting, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”

The ruling will certainly have a direct impact on the Redskins trademark fight, which we have also covered here on the blog. A 2014 ruling by a federal district court had cancelled six of the Redskins’ trademark registrations, finding them to be offensive to Native Americans.

Recently, the Trademark Office has been suspending action on pending applications that may be deemed offensive. It remains to be seen how quickly the USPTO will act in registering suspended applications that were otherwise cleared for registration.

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