United States Court of Appeals for the Fourth Circuit

Over the holiday break the United States Court of Appeals for the Federal Circuit, a specialized appellate court with jurisdiction over certain intellectual property matters, issued a significant ruling concerning the criteria that the United States Patent and Trademark Office (USPTO) may use to decide whether to issue a federal trademark registration.  The Lanham Act–the federal law authorizing the issuance of nationwide federal trademarks–excludes from registration eligibility any mark which is “disparaging” to a person or group of people. Many legal experts have wondered how a law that, by its express terms, calls on the government to discriminate based on the viewpoint expressed by a private person can withstand constitutional scrutiny under the First Amendment’s free speech clause.  The Federal Circuit has now ruled that it cannot, holding that the “disparagement” clause requiring denial of a trademark registration is unconstitutional.

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Everyone knows that court action begins with a trial, or, at least, the threat of one.  A trial litigates both factual and legal issues like, “Was the light green?” or “Was the police officer’s search unconstitutional?”  Thus, the purpose of a trial is (1) to determine what happened and (2) to determine if what happened makes a defendant liable for damages or subject to some other kind of court remedy, like an injunction.  A civil trial might end in an award of monetary damages, or even an order to stop certain behavior, and a court judgment embodying those remedies.  A criminal trial, likewise, could end with large fines, jail time, and an adjudication of guilt that can negatively impact employment prospects and even negatively impact certain civil rights, like the ability to vote and possess a firearm.

What is a person to do in the face of such consequences?  Appeal.

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