Trademark Disparagement Case Lee v. Tam | Kennedy Law, P.c.

Supreme Court to Hear Trademark Disparagement Case Lee v. Tam

Author: Stephen A. Kennedy

Date: 09/29/2016

As we predicted here on the blog last year, the Supreme Court has accepted certiorari this morning in Lee v. Tam. The Court will be reviewing whether the disparagement provision of the Lanham Act is facially invalid under the Free Speech Clause of the First Amendment. The USPTO argued in its Petition for cert that the allowance of a trademark registration is a government benefit and not a limit on private speech. The USPTO highlighted that a mark may still be used without federal registration. However, federal registration of a trademark confers several benefits on the owner of the mark that may not otherwise be claimed.

The case is directly relevant to the Washington Redskins ongoing fight regarding six of the Redskins’ marks that were cancelled earlier this year when a federal judge found that marks were disparaging to Native Americans. The Redskins case is still on appeal at the Fourth Circuit, but the team filed a petition for certiorari with the US Supreme Court seeking to bypass the Fourth Circuit. The Petition also requested that the Justices consolidate the Redskins case with Lee v. Tam, but SCOTUS has only granted cert to Lee v. Tam.

Managing Partner Stephen Kennedy recently authored a chapter concerning the disparagement cases in “Recent Trends in Trademark Protection.” A copy can be found here.

Lee v. Tam will be heard by the Court next term, which begins Monday, October 3. Our trademark team will be following this case closely here on the blog.

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