Posts Tagged: "free speech"

The International Trademark Association (INTA) on Friday filed an amicus brief with the European Union Intellectual Property Office’s (EUIPO’s) Grand Board of Appeal, arguing that “the terms ‘public policy’ and ‘principles of morality’ are inherently vague and therefore carry with them a risk of an inconsistent application and a danger of each examiner being tempted to follow personal preferences rather than clear legal guidance” with respect to a trademark on the term “COVIDIOT” not being “fully in line with public standards.” The case is Matthias Zirnsack vs. EUIPO, Case R-260/2021-G.

Former President Donald J. Trump announced today that he is suing Facebook, Twitter and Google/YouTube in separate class action suits, claiming, among other allegations, that the platforms have “increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors.”… All three complaints take aim at Section 230 of the Communications Decency Act of 1996, dubbing it “[l]egislation passed twenty-five (25) years ago intended to protect minors from the transmission of obscene materials on the Internet, and to promote the growth and development of social media companies” that has outgrown its original intent and enabled each of the companies to become behemoths who censor content of their choosing.

Though the parties have quickly settled their case, the question remains open: was Lil Nas X’s “Satan Shoe” an exercise of free speech or a trademark violation? What we do know is that sneaker giant Nike’s complaint filed in the Eastern District of New York on March 29, 2021 alleged a dispute of biblical proportions against Brooklyn art collective MSCHF Product Studio, Inc. Nike targeted its own Air Max 97 shoe, which it claimed MSCHF and its collaborator Lil Nas X (who was not named in the lawsuit) materially altered to feature an upside down cross, a pentagram, and an injection of human blood into the sole to create the “Satan Shoe” – 666 of them to be exact. The Satan Shoe still displays Nike’s famous Swoosh, which inspired calls to boycott the brand for its alleged association with the controversial shoes. Nike asserted claims of trademark infringement, trademark dilution, false designation of origin, and unfair competition, and sought a temporary restraining order, a permanent injunction, and damages.

The Senate has a busy schedule related to tech and innovation topics for the week of April 8, including hearings on prescription drug pricing, broadband Internet coverage maps developed by the U.S. government, free speech on social media and tech platforms, and clean energy innovations to address climate change. The Senate Environment Committee also has a business meeting this week to discuss a piece of legislation that would support innovation in direct air carbon capture. This week’s tech and innovation lineup at the House of Representatives is a bit lighter, although there are hearings looking at a proposed bill to restore net neutrality, as well as a review of the 2020 budget request for the National Institute of Standards and Technology. Elsewhere, the Brookings Institution hosts events on EU-U.S. digital data collaboration and the impact of automation on the future of work, and the Information Technology and Innovation Foundation explores funding issues for the National Institutes of Health and their impact on American biomedical innovation.

Whatever the Court decides, practitioners will welcome further clarity on the issue, since the Tam ruling was a 4 to 4 split decision with no real agreement on the rationale for the holding. “IP lawyers like certainty, and this case has created a lot of uncertainty,” said Monica Riva Talley. “There are a lot of applications on hold at the trademark office right now.”

Missouri made history in August 2018 when it became the first state to regulate the use of the word “meat” on product labels. The new legislation takes aim at companies selling plant-based meat alternatives. It also targets producers of lab-grown meat products, known as “clean meat” or “cell-based meat.”

In re Brunetti, the Federal Circuit reversed a Patent Trial and Appeal Board (“Board”) decision affirming a refusal to register the mark “FUCT” because it comprised immoral or scandalous matter under 15 U.S.C. § 1052(a) (“Section 2(a)”). While the Board properly relied on substantial evidence to support its conclusion, the bar against registering immoral or scandalous marks was held to be an unconstitutional restriction on free speech.

As it related to the Google incident, it was first reported that a memo authored by a Google employee, titled “Google’s Ideological Echo Chamber”, was being circulated among Google employees. Later that day, the memo was obtained by the media and made public. The memo’s author was identified in the press as a senior employee named James Damore. In the memo, Damore criticized the efforts of tech companies, Google included, to employ programs and hiring practices concentrating on diversity. Specifically, Damore was critical of tech company initiatives which had the goal of recruiting and employing female engineers.

The Supreme Court ruled that the anti-disparagement clause in the Lanham Act violates the Free Speech Clause in the First Amendment. Matal v. Tam. As a result, the United States Patent and Trademark Office may no longer deny registration of a federal trademark application on the ground of disparagement. Several states, including Massachusetts and New Hampshire, have anti-disparagement trademark provisions that will no longer be enforceable either… The statute does not define ‘scandalous’, but like the restriction against disparaging marks, the courts and the PTO focus on whether a mark is offensive.

Lauren Emerson, Baker Botts, LLP: “Today’s decision, while not surprising, is momentous, as any decision striking a longstanding legislative provision based on freedom of speech would be.  From a trademark practitioner’s perspective, Matal v. Tam is also remarkable in that it is the second decision in just over two years in which the Supreme Court specifically has taken note of the importance and value of trademark registration.   The decision has drawn additional attention as it undoubtedly marks the end of Pro-Football, Inc. (“PFI”)’s longstanding battle over its REDSKINS marks, as 2(a) will no longer bar registration of those marks either.   I have little doubt that in the weeks and months to come, we will see many new filings that will be more challenging to celebrate than Simon Tam’s hard-won victory.”

The U.S. Supreme Court agreed yesterday to review a Federal Circuit ruling that held unconstitutional a law prohibiting registration of trademarks that “may disparage” people or groups. In a case involving an Asian-American dance band’s bid to register its name THE SLANTS as a trademark, the court will consider whether the bar on registering disparaging marks in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), violates the First Amendment guarantee of free speech. In the meantime, the Court is expected to rule soon on the Washington Redskins’ cert petition in Pro-Football, Inc. v. Blackhorse, No. 15-1874, challenging a decision of the Eastern District of Virginia upholding the PTO’s cancellation of the REDSKINS trademarks under that same provision.

Yesterday the Federal Circuit in an en banc decision held that the portion of Section 2(a) of the Trademark Act, which bars federal registration for trademarks that are disparaging, is unconstitutional under the First Amendment. The government advanced three principal arguments for why §2(a) did not violate the First Amendment: (1) because §2(a) does not “prohibit” or suppress speech at all; (2) because trademark registration is government speech; and (3) because §2(a) merely withholds a government subsidy. The Court rejected all three of the government’s arguments, and in doing so issued holdings on three separate issues that have divided other tribunals.