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Freedom of Speech Protects “Disparaging” Marks, Federal Circuit Holds

In a recent landmark ruling, the Federal Circuit, sitting en banc, held that Section 2(a) of the Lanham Act’s ban on “disparaging” marks violates the First Amendment.[1] Section 2(a) provides that no trademark shall be refused registration “unless it consists of or comprises . . . matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols[.]”[2] The majority found that the government’s prohibition of registration of disparaging marks “amounts to viewpoint discrimination, and under the strict scrutiny review, . . . is unconstitutional.”[3] It further concluded that such prohibition is unconstitutional even under the intermediate scrutiny review because the government offered no legitimate interests to justify such prohibition.[4]

For the Redskins, NFL Playoff Season Means. . . Constitutionality Questions?

The NFL playoffs aren’t the only big football news happening this month! The U.S. Department of Justice recently decided to intervene in the Washington Redskins trademark litigation over the constitutionality of certain provisions of the Lanham Act.