Lewis & Clark Law Review
Trademarking Hate Speech: The Dangers of Inconsistency in the Federal Trademark Registration Process
First Page
199
Abstract
In 2017, the United States Supreme Court decided in Matal v. Tam that the Lanham Act’s prohibitions on disparaging trademarks violated the First Amendment of the Constitution. Two years later, it decided in Iancu v. Brunetti that prohibitions on “immoral or scandalous” marks were similarly unconstitutional. In the wake of these decisions, and at a time when hate speech is surging in the United States, this Comment seeks to address the danger of the USPTO’s approach to federal trademark registration. Part I uses the example of the WHITE LIVES MATTER mark to introduce the problems that arise in this new, less-regulated trademark environment. Part II explains the importance of federal registration for trademark owners and the effect of Tam and Brunetti on the USPTO’s ability to refuse registration of certain marks. Part III addresses how the USPTO’s inconsistent decision-making, both before and after Tam and Brunetti, thwarts trademark’s ultimate goals of protecting consumers from confusion and protecting trademark owners’ property rights. Part IV examines solutions to the inconsistencies in federal registration and seeks to propose a workable fix that the USPTO can implement. Ultimately, this Comment concludes that the inconsistencies in the USPTO’s federal trademark registration process enable the use and commercialization of hate speech. The USPTO must therefore adopt an intersectional critical race lens and standardize its practices to properly combat such virulent rhetoric.
Recommended Citation
Michaela A. Giuggio,
Trademarking Hate Speech: The Dangers of Inconsistency in the Federal Trademark Registration Process,
28
Lewis & Clark L. Rev.
199
(2024).
Available at:
https://lawcommons.lclark.edu/lclr/vol28/iss1/5