The Real Meaning of Free Speech

Robert J. Kenney for World Intellectual Property Review

The US Supreme Court is mulling over two petitions for certiorari in cases concerning disparaging trademarks and, should it grant both requests, one of two scenarios would emerge.

Under the Lanham Act, 15 USC, §1052(a), aka section 2(a), a trademark which “consists of or comprises immoral, deceptive or scandalous matter, or which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols …” shall be refused registration.

Applicants in two pending cases with opposite outcomes are seeking guidance from the US Supreme Court on the issue of whether the disparagement provision of the Lanham Act violates the free speech clause of the First Amendment; is impermissibly vague under First and Fifth Amendments; and violates the Fifth Amendment guarantee of due process.

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