The International Trademark Association (INTA) submitted an amicus brief to the Supreme Court of the United States in the case of Lee v. Tam. This case covers a matter of great importance to the INTA membership: the registrability of trademarks under U.S trademark law, otherwise known as the Lanham Act. The Lanham Act, including provisions governing trademark registrations, must be consistently applied. In this instance, the “may disparage” provision of Section 2(a) of the Lanham Act has been inconsistently interpreted and applied.
Further, the Lanham Act must be properly interpreted and construed, particularly when being examined under the First Amendment of the U.S. Constitution. In its consideration of the case, the U.S. Court of Appeals for the Federal Circuit, while properly determining that trademark registrations are not government speech, concluded that the disparagement provision of Section 2(a) does not regulate commercial speech. INTA believes that trademarks are inherently commercial in nature and should be viewed as commercial speech. Therefore, laws affecting or restricting the use of trademarks should be subject to intermediate scrutiny which is the standard for commercial speech.
Additionally, INTA asserts that, contrary to the suggestion of the Federal Circuit, Section 43(a) of the Lanham Act is available to protect a word or term regardless of whether it is a registered trademark. Section 43(a) is available where “any word, term, name, symbol, or device, or any combination thereof” is used in a manner that is false, misleading, or deceptive to consumers.
INTA is focused entirely on the legal aspects of this case and is not considering the facts of the case to make a determination on whether the mark in question is disparaging. However, for the reasons explained more fully in its amicus brief, INTA has concluded that the “may disparage” provision of Section 2(a), as drafted, is unconstitutional.