On January 18, 2017 the U.S. Supreme Court will hear arguments as to why a part of Section 2(a) of the Trademark Act of 1946 should be declared unconstitutional. If this occurs it will open the flood gates allowing, for the first time, companies and individuals to protect trademarks incorporating words and images that previously had been denied protection as being scandalous or immoral.
At issue is an effort by the Asian music group The Slants to register their band’s name in the U.S. The U.S. Patent and Trademark Office ruled that it was a derogatory term towards Asians and, under Section 2(a), denied registration of the mark.
On appeal, a significant question as to whether Section 2(a) is constitutional in its application was raised and won by The Slants. That issue will now be before the U.S. Supreme Court on January 18, 2017.
If the Supreme Court upholds the lower court’s ruling it will strike down the ability of the U.S. Patent and Trademark Office to deny registration of trademarks on the grounds that they are scandalous or immoral. This, in turn, will allow applicant’s to register, for the first time, trademarks that include certain curse words, derogatory terms, and other terminology previously not permitted.
In short, it may open the floodgates for a whole lot of … well … insert your own punny expletive … trademarks.
So for those of you who would like protection of trademarks previously banned by Section 2(a), now may be the best time to get them on file or back on file as the case may be. If the Supreme Court rules, as many expect that they will, that Section 2(a) is unconstitutional you will be the first in a race to register such terms and lock down exclusive rights to the same. Good luck!
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