Amicus Brief

Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property and Director, United States Patent and Trademark Office v. Steve Elster

Published: August 1, 2023

Court

United States Supreme Court

Our Position

Section 2(c) of the U.S. Trademark Act, which prohibits registration where a mark includes the name of a particular living individual except with his or her written consent, passes Constitutional review for four principal reasons: 1) Section 2(c) does not create any significant or undue restriction on speech, because the owner does not need a registration to engage in speech; 2) Section 2(c) is viewpoint neutral and therefore distinguishable from the provisions struck down in the Supreme Court’s recent Tam and Brunetti cases; 3) Congress has a substantial interest in regulating registration of trademarks that appropriate and trade upon the names and associated publicity rights of recognized individuals; and 4) Section 2(c) refusals permit more speech, not less, because they deny the owner the presumptive right to exclude third parties from using the claimed mark.

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