Today, the Supreme Court unanimously provided an opinion on a First Amendment and trademark matter finding that The Lanham Act’s “names clause” that “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent,” 15 U. S. C. §1052(c) does not run afoul of the First Amendment’s Free Speech Clause, and reversed the Federal Circuit. Vidal v. Elster 602 U. S. ____ (2024).

Procedural Background

Elster filed a trademark application for “TRUMP TOO SMALL.” The Examining Attorney at the United States Patent and Trademark Office refused registration on the basis of the absence of a name consent. Elster appealed and the Trademark Trial and Appeal Board (“TTAB”) agreed with the USPTO Examining Attorney. The Federal Circuit reversed the TTAB. The USPTO appealed.


In its analysis, the SCOTUS explained that when reviewing matters involving restrictions on Free Speech it must “distinguish between content-based and content-neutral regulations of speech.” National Institute of Family and Life Advocates v. Becerra, 585 U. S. 755, 766. SCOTUS has previously handed down opinions where portions of the Lanham Act were found unconstitutional based upon content-based restrictions. See Matal v. Tam, 582 U. S. 218 (statutory restrictions on “disparaging” marks are unconstitutional); Iancu v. Brunetti, 588 U. S. 388 (statutory restrictions on “immoral” or “scandalous” marks are unconstitutional). Viewpoint discrimination attempts to regulate not only the subject matter “but particular views taken by speakers on the subject.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829.

Here, however, the Court took the perspective that such a mark is not viewpoint-based since it is not “based on the specific motivating ideology or the opinion or perspective of the speaker.” Historically, US trademark law development has been inherently content-based, and SCOTUS noted that it has not opinioned on applying heightened scrutiny to content-based, but viewpoint-neutral trademarks in crafting a narrow opinion. In conclusion, the Court opted not to disturb the long-standing tradition, finding protection of a person’s name and goodwill is consistent with US trademark law tradition.

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