Free speech? Nothing 2(c) here
— Proof of Use (@ProofofUse) January 11, 2018
From the TTAB appeal:
The statue [sic] is not narrowly tailored in its suppression of freedom of expression. If the government is concerned that some living individual’s identity will be appropriated there are plenty of tort laws in place to prevent commercial exploitation or appropriation of likeness. In one example, some of the less restrictive alternative means available to accomplish the USPTO’s concerns of improper appropriation of identity are already existing in the current plethora of tort law. Specifically, our great President Donald J. Trump could potentially sue the applicant, under various torts laws if he believed his name was being commercially appropriated. However, the applicant has been inspired by our great President Donald J. Trump’s theme of Making America Great Again to make the best products the applicant is able to in order to help contribute to the overall goal of making America great again.
On another note, it is likely many other particular identifiable living individuals would be happy to have their name used to promote a product without any desire for financial advantage and it is not the USPTO’s role to suppress this freedom of speech and deny those other particular living individuals to not have the extra visibility and notoriety they would readily and happily welcome. The government is suppressing more speech than necessary to achieve its goals. The government is suppressing speech for some living individuals that do not want their identity exploited for person gain vs. other living individuals that welcome their name to be famed and given more notoriety.
Here’s Section 2(c):
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(c) Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.
Section 2(c)’s prohibition on the registration of the names of living individuals — great or not — is merely a bright line rule prohibiting unauthorized endorsement by a person. It is thus a subset within the broad category of things that may not function as trademarks because they are misleading, and a perfectly reasonable bright-line rule by Congress to prevent widespread misrepresentation and confusion.
You want to use a living person’s name? Get his permission. If you can’t, you’re robbing someone else of the distinctiveness he has caused (or if not him, someone a lot closer to him than you, who can’t get permission) his name to acquire.
That’s what the “statue” is for, and don’t let anyone tell you otherwise.