On December 22, the Federal Circuit ruled in a split en banc decision that the Lanham Act’s ban on disparaging or offensive trademark registrations is unconstitutional. The ruling comes after the “front man” for a band, The Slants, challenged the USPTO’s refusal to register a trademark on his band’s name because it is disparaging to a “substantial component” of people of Asian descent. In its ruling, the court reasoned that the ban improperly regulated speech in violation of the First Amendment. Commentators have suggested that the ruling may signify good news for the Washington Redskins. In its pending appeal to the Fourth Circuit, the Washington team seeks to overturn a July 8, 2015 U.S. District Court ruling that the ban on “disparaging” trademarks is constitutional. In January, the USPTO asserted that the Federal Circuit’s decision would likely mean that the regulatory trademark regime’s ban on “scandalous and immoral” marks is unconstitutional as well.
Read here for additional commentary on the Federal Circuit’s decision in In re Tam and Pro-Football, Inc. v. Amanda Blackhorse, read the Tam opinion here (PDF), and read the USPTO’s letter on the impact of Tam here (PDF).