News Roundup: Instagram in Plain Language; Recent Trademark Battles
Plain Language, Privacy, and Instagram
The First Amendment and Trademarks
Trademark law and free speech butt heads in Lee v. Tam, a case headed to oral argument in the Supreme Court on January 18. The case is about the disparagement provision of the Lanham Act, which says that disparaging trademarks can’t be registered.
The dispute started when Simon Shiao Tam, leader of an Asian-American rock band called The Slants, tried to register his band’s name with the U.S. Patent and Trademark Office. Tam picked the band’s name to reclaim the term and to “take on these stereotypes that people have . . . like the slanted eyes, and own them.” But Tam’s registration was denied because “slant” is a negative term and would violate Section 2(a) of the Lanham Act—the disparagement provision.
Tam argues that the disparagement clause is invalid under the Free Speech Clause of the First Amendment, because it discriminates based on the content of the trademark. He says the government should not deny the protections and benefits of trademark registration to viewpoints it finds offensive.
The case also affects another well-known trademark dispute: the Washington “Redskins” NFL football team. In 2014, the PTO cancelled the NFL team’s trademarks based on the disparagement clause. That case is on hold in the Court of Appeals for the 4th Circuit while the Supreme Court hears Tam’s case.
Keeping Up With the Kardashians’ Trademarks
In lighter news, the Kardashians are very protective of their name and trademarks, as Blac Chyna (real name Angela Renee White) found out the hard way. Chyna, engaged to Rob Kardashian, tried to trademark her new name (Angela Renee Kardashian) but was opposed by her future sisters-in-law.
The Kardashian opposition, filed with the USPTO, says that they will suffer damage to their reputation and goodwill if Chyna trademarks their name. The legal theory underlying the Kardashian’s opposition is called dilution by tarnishment. The idea is that a brand can be harmed by association with something negative, like sex, drugs, crimes, or in this case, a future sister-in-law. There’s some speculation that an opposition is sent automatically any time someone tries to register a trademark containing “Kardashian,” but the opposition is still pending as of January 12.