We’ve got your First Amendment right here:
Props to my partner John Connell and associates Darth Newman and, of course, the redoubtable Joel MacMull — who has now joined me at Archer & Greiner, P.C. and whose contribution to crafting the constitutional argument in the first round of CAFC briefing played a huge part in getting us here (in more ways than you will ever know).
From the Summary of Argument:
The bar on registration of disparaging marks in §2(a) of the Lanham Act violates the First Amendment. The purposes of the Act are to protect a trademark holder’s right to benefit from its own goodwill; to protect established marks from appropriation; and to protect the consuming public from confusing, misleading, or false and deceptive marks which create a misimpression between a product and its source. These objectives entail consideration solely of the commercial function, as opposed to the purportedly offensive or objectionable content or quality, of a mark, with one exception: §2(a), which additionally conditions registration on, inter alia, the mark not being “disparaging,” viz., not having a meaning that may be perceived as derogatory. Satisfying §2(a) necessarily implicates the PTO in a subjective evaluation of the expressive content of a mark.
Trademarks are a form of commercial speech, protected under the First Amendment. Government regulation of commercial speech is subject to a showing of at least a substantial governmental interest that is directly advanced by the regulation drawn no more broadly than necessary to meet that interest. However, no legitimate governmental interest justifies §2(a)’s restriction on speech. To the contrary, §2(a)’s bar on the registration of disparaging marks (1) constitutes content-based regulation of speech, and (2) attaches conditions on speech that are neither justified by the Spending Clause nor define the limits of a government spending program. Rather, §2(a)’s conditions act as leverage to regulate speech based on an agency’s subjective determination of derogatory meaning, far beyond the contours of the commercial objectives of trademark registration established by the Act. Whether adjudged under strict or intermediate scrutiny, such conditions are unconstitutional both as content-based on their face and as viewpoint discriminatory as applied.