Law on disparaging trademarks to get Supreme Court review; SCOTUS might again overturn federal court on patent, trademark cases, says Jeremy Kapteyn, chairman of Rose Law Group Intellectual Property Law

Washington Redskins
Washington Redskins

By Adam Lipstak | The New York Times

The Supreme Court agreed on Thursday to decide whether a federal law that denies protection to disparaging trademarks can survive First Amendment scrutiny.

The case, concerning an Asian-American dance-rock band called the Slants, will probably also effectively resolve a separate one concerning the Washington Redskins football team.

The trademark case was one of eight the justices chose from among the hundreds of petitions seeking review that had piled up over the summer.

Other new cases added to the docket concerned deportations, students with disabilities, and criminal fines.


“This will be an interesting case to watch. The Supreme Court has frequently overturned federal circuit decisions in patent cases in recent years, and this may well be another case in which the court reaches a different outcome.

“The First Amendment considerations forming a basis for the federal circuit’s ruling are undeniably important. However, the Patent and Trademark Office’s argument — that a refusal to provide a federal intellectual property benefit for disparaging marks based on application of the prohibition on disparaging marks in the Lanham Act does not amount to an affirmative restriction of free speech — could persuade the court to overturn the federal circuit yet again.

Jeremy Kapteyn

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September 2016