Federal Circuit: Lanham Act "Disparaging" Mark Prohibition Unconstitutional

On December 22nd the Court of Appeals for the Federal Circuit issued its sua sponte en banc In re Tam decision regarding the constitutionality of the "disparaging" marks bar under Section 2(a) of the Lanham Act. A Federal Circuit panel previously upheld a Trademark Trial and Appeal Board (the TTAB) decision affirming the refusal under the disparaging marks provision of Section 2(a) of a trademark application for the mark "THE SLANTS." Would a "substantial composite" of Asians find the phrase THE SLANTS disparaging? The answer was "yes", as detailed in our earlier blog posting on this case. Judge Moore, writing for the Federal Circuit panel in initially affirming the appeal decision, however, raised the question as to whether the court should consider the constitutionality issues about the registration standard raised by Mr. Tam on an en banc basis. Her peers agreed to do so.