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- Strict scrutiny vs intermediate scrutiny registration#
- Strict scrutiny vs intermediate scrutiny free#
Holder, in which the court held that U.S. After Tam, it is clear that trademarks are not included among the categories of expression that may be regulated by the government without subjecting the law to a constitutional balancing test, such as fraudulent speech or speech that incites others to imminent illegal activity. It is also significant because the court acknowledged that trademarks can contain constitutionally protected commercial and noncommercial expression.
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The decision in Tam is important because the Supreme Court directly addressed the question of whether a trademark law violates the First Amendment right to freedom of expression avoidance of constitutional analysis is more common by courts in trademark disputes. Laws that discriminate based on viewpoint are subject to constitutional scrutiny unless the regulation involves government speech, and trademark registrations by private parties are not government speech.
Strict scrutiny vs intermediate scrutiny registration#
(Justice Neil Gorsuch did not participate in the consideration or decision of the case.) The court held that Section 1052(a) is a viewpoint-discriminatory law because it denies registration of marks that may disparage persons, institutions, beliefs or national symbols, while allowing registration of words or symbols that are positive or benign – “happy-talk,” per Justice Samuel Alito’s opinion.
Strict scrutiny vs intermediate scrutiny free#
§ 1052(a), and the eight justices unanimously agreed this law violates the free speech clause of the First Amendment because the government discriminates based on viewpoint and targets offensive expression with an intent to discourage its use. The Supreme Court evaluated the constitutionality of the disparagement clause of the U.S. Owners of trademarks deemed by the government to be disparaging – such as THE SLANTS and REDSKINS – and free speech advocates are celebrating the U.S. Ramsey is a Professor of Law at the University of San Diego, and has written about the potential conflict of trademark laws and free speech rights in A Free Speech Right to Trademark Protection? and Increasing First Amendment Scrutiny of Trademark Law.