When a trademark disparages identifiable groups of persons, institutions, beliefs, or national symbols, Section 2(a) of the Lanham Act 1 bars its registration. This provision has been in the Act since it was written, but became an active controversy since the USPTO cancelled the registrations of the Washington Redskins football team for disparaging Native Americans. 2 That ruling was affirmed by the Eastern District of Virginia in 2015 3 and is currently pending on appeal before the 4th Circuit. Now, the Federal Circuit has deemed Section 2(a) to be unconstitutional in In Re Tam, decided en banc in December 2015. 4 The USPTO has requested certiorari of the Tam case to the Supreme Court.
Some of the concurrences would have found the section void for vagueness, but not unconstitutional; others would have found it unconstitutional for trademarks with a political speech element, but not for ordinary trademarks. The dissents would have upheld the constitutionality.
Now that the case might be before the Supreme Court, it could affect the pending appeal over the Redskins trademarks. If the traditional analysis applied in the Blackhorse case is upheld by the 4th Circuit, that Section 2(a) does not affect speech and thus is exempt from 1st Amendment scrutiny, then we could be facing a circuit split. Further, if the Tam case is taken up and decided by the Supreme Court before the 4th Circuit can rule in Blackhorse, it could affect the outcome as well.