Trademark Law—Federal Circuit Holds En Banc That Excluding Disparaging Trademarks Violates First Amendment—In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) (en banc)

Congress enacted the Lanham Act for two primary reasons: ensuring public confidence that a product is genuine, and preventing misappropriation of that product’s identifiers by “pirates and cheats.”1 Section 2(a) of the Lanham Act prevents federal registration of scandalous, immoral, or disparaging trademarks.2 In In re Tam,3 the Federal Circuit reviewed en banc whether the First Amendment allows the denial of a trademark application that the Trademark Examiner and Trademark Trial and Appeals Board (TTAB) found disparaging.4 Vacating the TTAB’s holding, the Federal Circuit held that the “disparaging” provision of section 2(a) of the Lanham Act violates the First Amendment right to free speech because the government has no legitimate interest in denying registration under the provision.