Today in Matal v. Tam, the Supreme Court unanimously affirmed that the restriction on registration of disparaging marks violates the First Amendment's right of free speech. Justice Alito, writing for the majority, noted that the "vagueness of the disparagement test and the huge volume of applications has produced a haphazard record of enforcement" to date. Justice Kennedy, in a concurring opinion along with four other justices, noted that disparaging trademarks is "viewpoint discrimination" by the federal government. While the reasoning behind the decision is widespread, the immediate result is clear--the USPTO will begin to allow registration of disparaging marks and will no longer cancel any marks because they are disparaging. For the full case and opinion: https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf.
Two days before the inauguration, the Trump campaign applied to trademark "Keep America Great!" (both with and without the exclaimation mark, in Serial Nos. 87305582 and 87305551 respectively), as a forward looking measure to a potential 2020 re-election. The new slogan, branded halfway through a Washington Post interview, was filed on January 18th by the campaign's attorney and includes wide ranging goods and services, covering bumper stickers, clothing, political campaign services, online publications, social networking services, and more. Having registered hundreds of federal trademarks throughout his business career, Donald Trump obviously understands the value of marketing and protecting a brand. In fact, he had previously registered the four simple words "Make America Great Again", as early as November 19, 2012 (Serial No. 85783371), which assisted in propelling him to the White House steps.
The Federal Circuit recently rejected the TTAB's holding in In re. JobDiva, which previously required for "something more" than selling software in order to protect a mark as a service. The court found that the appropriate legal standard to use was whether purchasers would perceive a mark to identify the indicated services, which is a factual determination to be conducted on a case-by-case basis.
Last week marked the tipping point for marijuana legalization in the US. Recreational use is now legal in California, as well as Maine, Nevada, and Massachusetts. Medical use was also approved in historically resistant states including North Dakota, Montana, Arkansas, and Florida. The national cannabis industry as now tripled in size, primarily attributed to California's recent legalization, which could exceed the size of its famed wine businesses, with the market projected to grow to $22 billion in four years, from $7 billion this year in 2016. However, conflicts with federal law still exist, including the ability to protect marijuana branding.
The Trademark Trial and Appeal Board (TTAB) affirmed a refusal of a trademark application for the "BARR GROUP" for engineering related services, finding the mark to be primarily merely a surname.
The Supreme Court yesterday decided that it will review the Federal Circuit's en banc decision in Lee v. Tam, a case involving the refusal to register the term "The Slants" as a band name for a group musicians of Asian descent. The Federal Circuit's current decision holds that the USPTO's refusal to register the "The Slants" under the disparagement provision of the Lanham Act is an unlawful burden on free speech.
On March 24, 2015, in B&B Hardware, Inc. v. Hargis Industries, Inc., the Supreme Court held that a Trademark Trial and Appeal Board (TTAB) decision is to be given issue preclusion effect when the usages it adjudciated are materially the same as those before a later district court proceeding.
The Supreme Court has granted cert on several new cases today including four relating to intellectual property issues, including a copyright case, a trademark case, as well as two patent cases. Lyle Denniston of the Scotus Blog reports that the new cases will probably be argued in April, the last sitting of the term.
With potentially hundreds of new generic top level domains (“gTLDs,” e.g. .store, .law, .food) just around the corner, the Internet Corporation for Assigned Names and Numbers (ICANN)—the organization response for overseeing Internet domain name allocations--recently opened its Trademark Clearinghouse (TMCH), where current brand owners can record their existing trademarks.