The Federal Circuit today vacated its decision from last week and elected to have the full court conduct an en banc review. See my blog post of April 20th for background information about last week's court decision.
The issue on en banc review is: "Does the bar on registration of disparaging marks
in 15 U.S.C. § 1052(a) violate the First Amendment?" Note that the Lanham Act prohibits the registration of trademarks that "consists of or compromises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connect with persons living or dead ..."
Under the existing legal test, the Federal Circuit last week determined that the name The Slants for an Asian band is disparaging to a prominent number of Asian Americans and therefore cannot be registered as a trademark, although the band can continue to use the name without registration for its band.
So, more to come.
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