aAfter the Supreme Court ruled about three months ago in Matal v. Tam, and struck down statute barring the USPTO from registering disparaging trademarks (because the law violated the First Amendment), many wondered about the effect. Tam is the lead singer of the band call The Slants. Yes, there has been a small rush of applications for marks that previously would have been deemed offensive – because many believe that the prohibition on immoral and scandalous marks will soon fall as well (it is currently being challenged in the In re Brunetti case involving the FUCT trademark).
But these cases do not and will not affect 99.9% of trademark owners.
Yes, there have been a few filings for n-word trademarks and Nazi flag symbols, among other things that would likely have been refused registration before. Those cases will, and should, receive a lot of attention in the media.
It seems to me, however, that the only development stemming from these cases that will impact branding and the world of trademarks as a whole is that more brands will continue to be edgy, pushing boundaries. Brands used to strive to be vanilla and conservative — offending a potential customer could result in lost sales. But in the last 20 years, many more brands than before have sought to stand out and get attention by being edgy and pushing the envelope. And as the marketplace of brands continues to get more crowded, more brands will continue to do so. But they were free to do so before even if they might not receive trademark registration.
Don’t get me wrong, these trademark cases are important for the law and for scholars – anything involving the First Amendment is very important; boundaries (or removing them) on speech are a critical topic in America today. The intersections of political, commercial, and personal speech are important. But I remain convinced that impact of these cases on most brand owners will be negligible.
