Disparaging marks refer to trademarks that are considered offensive, derogatory, or demeaning towards individuals, groups, or entities. These types of marks are generally not eligible for federal trademark registration as they can be seen as harmful or discriminatory.
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Disparaging marks are prohibited from federal trademark registration under the Lanham Act, which prohibits the registration of marks that may disparage or bring into contempt or disrepute any persons, living or dead, institutions, beliefs, or national symbols.
The determination of whether a mark is disparaging is made from the perspective of the targeted group, not the general public or the trademark applicant.
Factors considered in determining if a mark is disparaging include the meaning of the mark, the relationship between the mark and the identified group, and the context in which the mark is used.
Disparaging marks can be challenged and cancelled even after they have been registered, as the Trademark Trial and Appeal Board has the authority to revoke registrations for marks that are found to be disparaging.
The Supreme Court's decision in Matal v. Tam in 2017 struck down the disparagement clause of the Lanham Act, ruling that it violated the First Amendment's free speech protections.
Review Questions
Explain the legal basis for the prohibition of disparaging marks in trademark registration.
The Lanham Act, which governs federal trademark registration in the United States, prohibits the registration of marks that may disparage or bring into contempt or disrepute any persons, living or dead, institutions, beliefs, or national symbols. This provision is intended to prevent the registration of trademarks that are offensive, derogatory, or demeaning towards individuals or groups. The determination of whether a mark is disparaging is made from the perspective of the targeted group, not the general public or the trademark applicant.
Describe the factors considered in determining if a trademark is disparaging.
The factors considered in determining if a trademark is disparaging include the meaning of the mark, the relationship between the mark and the identified group, and the context in which the mark is used. Specifically, the Trademark Trial and Appeal Board will examine the likely meaning of the matter in question, whether that meaning may be disparaging to a substantial composite of the referenced group, and the manner in which the mark is used in the marketplace in relation to the goods or services. The analysis is based on the perspective of the targeted group, not the general public or the trademark applicant.
Analyze the impact of the Supreme Court's decision in Matal v. Tam on the disparagement clause of the Lanham Act.
In the 2017 Supreme Court case of Matal v. Tam, the Court struck down the disparagement clause of the Lanham Act, ruling that it violated the First Amendment's free speech protections. This decision effectively removed the legal basis for the USPTO to refuse registration of trademarks on the grounds that they may be disparaging. While the Lanham Act still prohibits the registration of scandalous, immoral, or deceptive marks, the disparagement provision can no longer be used to deny registration solely on the basis that a trademark may be offensive or demeaning to a particular group or individual. This landmark ruling has significantly impacted the landscape of trademark law and the ability of trademark owners to protect potentially controversial marks.
Deceptive marks are trademarks that are likely to mislead or deceive consumers about the nature, quality, or source of the goods or services they represent.