Lower Court Holding in In Re Simon Shiao Tam
Decision of the Federal Circuit U.S. Court of Appeals
Section 2(a) of the Lanham Act bars the Patent and Trademark Office (PTO) from registering scandalous, immoral, or disparaging marks. The government enacted this law — and defends it today — because it disapproves of the messages conveyed by disparaging marks. It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys. That principle governs even when the government’s message-discriminatory penalty is less than a prohibition. Courts have been slow to appreciate the expressive power of trademarks. Words — even a single word — can…
