U.S. Supreme Court Upholds Constitutionality of Federal Trademark Statute's "Names Clause"

Intellectual Property attorney Thomas Brooke published an article in the Intellectual Property & Technology Law Journal analyzing the U.S. Supreme Court's ruling in Vidal v. Elster that rejected a First Amendment challenge to the "names clause" of the Lanham Act. The names clause prohibits the federal registration of a trademark that uses a living person's name without that person's consent. The U.S. Patent and Trademark Office (USPTO) relied on this clause when denying an application for the trademark "Trump too small," and the would-be trademark registrant challenged the statute as an unconstitutional restriction of free speech. Lower courts had found this argument compelling, classifying it as an "content-based" restriction that treated trademark applicants differently when they contained a living person's name in violation of the First Amendment. The Supreme Court disagreed, distinguishing the names clause from "viewpoint-based restrictions" and saying it "necessarily requires content-based distinctions." The decision ultimately confirms that a trademark applicant seeking to use a living person's name needs permission from that specific person to proceed. In his article, Mr. Brooke summarizes the case background and court's analysis.

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