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"Examination Guidance for Section 2(a)’s Disparagement Provision after Matal
v. Tam and Examination Compliance with Section 2(a)’s Scandalousness
Provision While constitutionality Remains in Question” is now available on the
Trademark Examination Guides page.
Section 2(a) of the
Lanham Act, 15 U.S.C. §2(a), bars registration of marks that consist of or
comprise immoral or scandalous matter (“the scandalousness provision”), or
matter which may disparage persons, institutions, beliefs, or national symbols,
or bring them into contempt or disrepute (“the disparagement
provision”).
In Tam the Supreme Court held that the
disparagement provision violates the Free Speech Clause of the First Amendment. Accordingly, that a mark may “disparage . . . or bring . . . into contempt, or
disrepute” is no longer a valid ground on which to refuse registration or
cancel a registration.
Because the constitutionality of the
scandalousness provision remains pending before the Federal Circuit in In re
Brunetti, No. 15-1109 (Federal Circuit), we continue to examine
applications for compliance with that provision according to the existing
guidance in the Trademark Examining Manual of Examining Procedure (TMEP) and Examination Guide 01-16.
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