The federal Lanham Act authorizes businesses to register their trademarks with the federal Patent and Trademark Office (the “PTO”) for the purpose of establishing an exclusive right to use their trademarks in “commerce.” 15 U.S.C. §§ 1051 et. seq. One provision of the Lanham Act authorizes the PTO to refuse registration when a proposed trademark “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent . . ..” 15 U.S.C. § 1052(c). In Vidal v. Elster, decided on June 13, 2024, the Court ruled that that restriction on trademark registration did not violate the First Amendment to the United States Constitution, even when the proposed trademark is intended to satirize a living politician, in this case Donald Trump, without his permission. The vote on the Court for this ruling was unanimous, although there was some disagreement among the Justices over its underlying reasoning.
COMMENT: A simple distinction between a regulation of “commerce,” which the Constitution explicitly permits, and a regulation of political “speech” or publication which the First Amendment, in context, prohibits, would have produced the same result in this case without confusion as to why. Unfortunately, the Court has previously held that the First Amendment’s prohibition of most kinds of general “expression” extends to commercial speech and publication, despite the Constitution’s clearly apparent distinction and different treatment of the two.
Dan Rhea
RECENT RULINGS 