Intellectual Property Law
New Matter SUMMER 2017 Volume 42, Number 2
Content
- 2017 New Matter Author Submission Guidelines
- Case Comments
- Contents
- Copyright Commentary
- Federal Circuit Report
- Federal Government Expands Public Disclosure Requirements For Clinical Trials: Product Developers Must Publish More Detailed Information, Study Protocols, and the Results of Studies of Unapproved/Unmarketed Products
- Intellectual Property Section Executive Committee 2016-2017
- Intellectual Property Section Interest Group Representatives 2016-2017
- Ip and Art: An International Perspective
- Letter from the Chair
- Letter from the Editor-in-Chief
- Ninth Circuit Report
- Online Cle For Participatory Credit
- Standing Still: Denial of Certiorari in Belmora Llc v. Bayer Consumer Care Ag Leaves Question on Standing for Foreign Plaintiff's Unfair Competition Claims
- The Licensing Corner
- The State Bar of California Intellectual Property Alumni
- Ttab Decisions and Developments
- The Band Who Must Not Be Named: Summary of Briefs and Oral Hearing in Lee v. Tam
The Band Who Must Not Be Named: Summary of Briefs and Oral Hearing in Lee v. Tam
STEPHANIE SPANGLER
Siskind Boyd LLP
INTRODUCTION
On November 14, 2011, Simon Tam, the leader of the all Asian-American rock band called The Slants, filed an application to register the trademark, THE SLANTS. The PTO denied registration because the mark was disparaging to Asian Americans.1 Tam, on a mission to transform the derogatory meaning of "the slants" into one of empowerment, pressed on undeterred.
Tam filed an appeal before the Court of Appeals for the Federal Circuit, which initially agreed with the PTO.2 In a subsequent en banc rehearing, the Federal Circuit changed its view, holding that because the Lanham Act’s disparagement provision is a viewpoint-based restriction on speech, strict scrutiny applies.3 The court then held that the provision did not serve a compelling government interest.4 Going further, the court also noted that even if the disparagement provision were to be considered a restriction on commercial speech (where an intermediate scrutiny standard would apply), there was no substantial government interest that justified the restriction.5