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Today, the Supreme Court granted the petition for certiorari in Vidal v. Elster, a trademark case decided by the Federal Circuit. The Supreme Court will review whether the U.S. Patent and Trademark Office’s “refusal to register a mark under Section 1052(c) [of the Lanham Act] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” Here are the details.

In its petition, the government pointed out that, “[f]or more than 75 years, Congress has directed the USPTO to refuse the registration of trademarks that use the name of a particular living individual without his written consent.” But, it continued, the Federal Circuit “in this case held that the refusal to register a mark . . . violates the First Amendment when the mark contains criticism of a government official or public figure.” According to the government, “[t]hat holding is incorrect, and this Court usually grants review when a court of appeals has invalidated the application of a federal statute.”

In his brief in opposition, Elster argued “[t]he Federal Circuit’s decision is narrow and bound to the specific circumstances of this case.” Elster further argued “the Federal Circuit correctly held that the First Amendment prohibits the PTO from denying registration on the ground that a trademark criticizes a former president.”

In its reply, the government argued “this case . . . presents an opportunity for the Court to address a recurring issue left open” in prior cases, in particular “whether a Lanham Act bar” on the registration of a trademark is “a condition on a government benefit or a simple restriction on speech.” In this regard, Vidal maintained, “Section 1052(c) is not a restriction on speech, but a condition on a government benefit.” Furthermore, the government maintained, “because it is a reasonable viewpoint-neutral condition, Section 1052(c) is consistent with the First Amendment, both on its face and as applied to marks like respondent’s.”

As mentioned, today the Supreme Court agreed with the government that the Federal Circuit’s judgment warrants review.

We will continue to keep track of this case and report on developments.