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Fenwick Partner Weighs in on Landmark Slants Decision

June 20, 2017

In its landmark ruling in Matal v. Tam, the U.S. Supreme Court struck down the restriction on the registration of marks that “disparage” under the Lanham Act, holding that the prohibition on disparaging registrations violates “a bedrock First Amendment principle.” (Read more about the impact on business in Fenwick’s case analysis: “Supreme Court Rocks the Trademark Office in ‘Slants’ Case”)

Fenwick litigation partner Eric Ball spoke with several publications, including Bloomberg BNA, Law360 and IP Watchdog about the significance of the June 19 high court decision.

The decision reinforces basic principles of First Amendment law: the government should not be choosing which viewpoints it will support, Ball said to Law360. Individuals can now register disparaging, and likely scandalous and immoral trademarks, he added.

Bloomberg BNA reported that the Slants ruling may prompt the U.S. Court of Appeals for the Fourth Circuit to resolve the Washington Redskins trademark dispute—which is being fought on similar grounds—on a faster track.

“I would expect the Redskins’ counsel to file sometime this week, if not today,” Ball told Bloomberg BNA. “Since this is a strong ruling from the Supreme Court, you can see them moving quickly to resolve this case.”

In a second Bloomberg BNA article, Ball said that the lead plaintiff in the Redskins case may still have an opportunity to appeal to the public. “Ms. Blackhorse’s legal arguments are a long shot at this stage. But oral argument is another chance to sway public opinion,” he said. “If the 4th Circuit live streamed the oral argument here, then Ms. Blackhorse could further explain the harm that the Redskins mark causes her.” Ball added that even if Redskins owner Daniel Snyder had a victory through the Tam decision, there is nothing stopping him from doing the right thing and changing the name.

In a third article, Bloomberg BNA also reported that red-light businesses could be the big winners of the Supreme Court ruling. Ball told the publication that many of the approximately 90 applications incorporating the F-word pending at the U.S. Patent and Trademark Office are for uses like T-shirt slogans, which would be rejected as ornamental anyway. And there is a limit to how far businesses can go. “I don’t expect a Fortune 500 company to have a scandalous mark, but what is scandalous today might change 50 years from now,” Ball said.

For Fenwick insights into the significance of the ruling, read the entire case analysis written by Ball and Fenwick lawyers Matthew Becker and Armen Nercessian, “Supreme Court Rocks the Trademark Office in ‘Slants’ Case.”