There was a problem adding this course to your account. Please try again in a few minutes. If the problem persists, you can contact our support department at (877) 880-1335.
Adding Registration, Please wait...
You must be logged in to perform this action.
Log in
Cancel
Trademarks, the First Amendment, and the Implications of the Supreme Court's Brunetti Decision
Intellectual Property Law, Trademark Interest Group
The speaker will discuss the U.S. Supreme Court’s recent decision in Iancu v. Brunetti, where the Court held that the federal trademark law banning registration of immoral and scandalous marks is a viewpoint-discriminatory regulation of expression that violates the First Amendment. This conclusion was not surprising given the fact that the Court held in 2017 in Matal v. Tam that a similar law denying registration to potentially disparaging marks was an unconstitutional regulation of the viewpoint of expression. While some commentators believe that Tam and Brunetti require the U.S. Patent and Trademark Office to register expression that is hateful, profane, vulgar, or otherwise offensive, trademark applicants still need to prove that their marks are distinctive and function as trademarks that identify a single source of goods or services. Thus, such marks may be refused registration on lack of distinctiveness or failure to function grounds. Moreover, the Justices suggested that Congress could draft a more narrow provision that would survive First Amendment scrutiny, such as a law banning registration of expression that is obscene, vulgar, or profane.
Tam and Brunetti are also important decisions for other reasons. In both of these cases, the Supreme Court clarified that trademark laws regulate the content (and sometimes the viewpoint) of expression and are not immune from careful First Amendment scrutiny. Thus the Justices opened the door to wide-ranging free speech challenges to other U.S. trademark laws. Trademark laws that facilitate the communication of source-identifying product information, promote competition, and protect consumers from misleading uses of marks are probably constitutional under the First Amendment. Yet some trademark laws—such as dilution law—are likely to be found unconstitutional if they are subject to First Amendment analysis, and may need to be eliminated or revised to better protect expressive values and further the goals of trademark law.
1 Participatory MCLE Credits
Customers Who Bought This Item Also Bought
(CLEtoGo (Podcasts)) What You Must Know about Fee Agreements
(OnDemand) 2018 IP Institute: Owning Innovation: Between Code and Contract
(CLEtoGo (Podcasts)) 2018 IP Institute: Online Brand Monitoring and Enforcement – Winning the Battle Without Losing the War
(CLEtoGo (Podcasts)) Best Practices for Non-Disclosure Agreements: Are You Using Them Correctly?
(OnDemand) Mastering Modern Day Client Communication: Website Compliance and Accessibility (ADA): How to Improve Your Law Firm’s Website for the Modern Client
(CLEtoGo (Podcasts)) 2019 Trademark Office Comes to California: USPTO Update
(OnDemand) 2019 Trademark Office Comes to California: Examination Tips and Tricks
(CLEtoGo (Podcasts)) 2019 Trademark Office Comes to California: Examination Tips and Tricks
(OnDemand) 2019 Trademark Office Comes to California: Ethical and Risk Management Considerations for Trademark Practitioners in Clearing Marks
(CLEtoGo (Podcasts)) 2019 Trademark Office Comes to California: Ethical and Risk Management Considerations for Trademark Practitioners in Clearing Marks
(OnDemand) 2019 Trademark Office Comes to California: And Now for Something Completely Different- What You Need to Know About Non-Traditional Trademarks
(CLEtoGo (Podcasts)) 2019 IP and the Internet Conference: Social Media Influencers as a Practice
We are committed to accessibility! All OnDemand programs after January 1, 2022 include closed captioning. To request closed captioning for a program older than January 1, 2022, send us a note at accessibility@calawyers.org or contact us at 916-516-1760 for assistance.
Adding Registration, Please wait...
