First Amendment Archives

Apr 11, 2019

Brunetti and the Tests of Tam

On Monday, April 15, 2019 arguments in the Brunetti case [Iancu v. Brunetti, No. 18-302] will be heard at the United States Supreme Court. Erik Brunetti seeks to register the mark FUCT for clothing. Brunetti’s application was rejected for registration by the United States Patent and Trademark Office on the basis that it violates the Lanham Act, 15. U.S.C. 1052(a) which prohibits the registration of marks comprised of “immoral” or “scandalous” matter. The arguments by the government and Brunetti are sure to echo some of the arguments made in the so-called SLANTS case, Matal v. Tam, 137 S. Ct. 1744… Read more

Jun 19, 2017

THE SLANTS Mark Registrable as Prohibition of “Derogatory” Marks Held Unconstitutional By the Supreme Court

By: Jim Bikoff, Darlene Tzou, and Holly Lance On June 19, 2017, the United States Supreme Court issued a landmark decision in Matal v. Tam, 582 U.S. ____ (2017), unanimously holding the disparagement clause in the Lanham Act unconstitutional on the ground that it violates the First Amendment. This decision upends over 70 years of practice under Lanham Act § 2(a) (15 U.S.C. § 1052(a)). The case will likely have an immediate effect on other pending “derogatory” mark cases, including Blackhorse v. Pro-Football, Inc., 2015 U.S. Dist. LEXIS 90091 (E.D. Va. July 8, 2015) (the “Redskins” case) and may signal… Read more

Dec 30, 2015

The Eleventh Circuit Visits Margaritaville

In Buehrle v. City of Key West, Case No. 14-15354 (decided December 29, 2015), the United States Court of Appeals for the Eleventh Circuit considered whether a limit on the number of tattoo establishments in the City of Key West, Florida infringed the First Amendment rights of a tattoo artist. From 1966 through 2007, the City of Key West, Florida prohibited the operation of any tattoo parlors. Opinion, pp. 2-3. As a result of litigation, Key West adopted an ordinance permitting two tattoo businesses to operate in its historic district. According to the Opinion, Key West maintained that “tattoo establishments… Read more

Nov 5, 2015

Commercial Speech in the Eleventh Circuit

You Say Tomato, I Say Tomato In Dana’s Railroad Supply v. Florida Attorney General, Case No. 14-14427 (decided November 4, 2015), the United States Court of Appeals for the Eleventh Circuit addressed an interesting issue involving the application of the First Amendment to commercial speech. The Court concluded that the State of Florida was improperly regulating commercial speech by authorizing one type of conduct and penalizing other conduct when, in the Court’s view, there was no difference between the two types of conduct. In the Court’s view, the statute at issue drew a distinction merely over how the conduct was… Read more