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

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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