Lee v. Tam – Disparaging Mark or Free Speech? – Pending Decision

By Michael Small   Section 2(a) of the Lanham Trademark Act, 15 U.S.C. §1052(a) allows the United States Patent and Trademark Office (USPTO) to refuse registration of marks that contain immoral or scandalous matter.[1]  Known as the disparagement clause, the USPTO enforces the rule in the Trademark Manual of Examining Procedure (TMEP) Section 1203.01, specifying the types of rejected marks that fall under immoral or scandalous nature, such as obscene graphics or disparaging terms.[2]  Examples of rejected trademark applications include the following: Stop the Islamisation of America; Democrats Shouldn’t Breed; Naturally Intelligent God Gifted Africans; and most recently, the cancellation of the Washington Redskins NFL football team’s trademark name in 2014.  Rejected trademarks are void from government benefits, such as preventing registration from other confusingly similar marks during the application process, receiving sole ownership of the mark for advertising purposes, and prevent foreign companies with similar marks to import their trademarked goods.  In the pending U.S. Supreme Court case Lee

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Royalty Fee? Wasn’t Peter and the Wolf Free?

By Rob Lower and Michael Stein Summary In Golan v. Holder (Decided 18 January 2012) the Supreme Court upheld the constitutionality of amendments to US copyright law made in 1994. The practical effect of the holding is that the authors of foreign works may receive copyright protection for works in the public domain. In 1994, Congress amended 17 U.S.C. §104A to bring the US into compliance with the Berne Convention for the Protection of Literary and Artistic Works, an international treaty joined by the US in 1989. Under Berne, member countries must provide all other member countries with the same level of copyright protection available to their own citizens. While there is little opposition to providing foreign authors with US copyright protection, the decision to provide such protection for works in the public domain has been the subject of much criticism. Affected Foreign Works There are three circumstances under which US authors could have received copyright protection in the US, while foreign

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