Statute Barring Registration of Disparaging Trademarks Upended
11 01 2017Tam appealed to the Trademark Trial and Appeal Board (the “Board”), but the Board affirmed the Trademark Examiner’s refusal to register the mark. The Board found that although THE SLANTS has several meanings, the record demonstrated that it was “abundantly clear” that the likely meaning of the mark referred to people of Asian descent. Mr. Tam again appealed, this time to the Federal Circuit, arguing that § 2(a) is unconstitutional. The first time around, the Federal Circuit agreed with the Examiner and the Board. In a rare procedure, the Federal Circuit sua sponte ordered a rehearing en banc to review the constitutionality of § 2(a). Upon rehearing en banc, the Federal Circuit overturned McGinley in its 9-3 decision.
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