Ilhyung Lee

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In Matal v. Tam, the Supreme Court upheld a party’s constitutional right to register a racial slur as a trademark (“THE SLANTS” for a band). On First Amendment grounds, the Court struck down a provision of the Lanham Act that prohibits the registration of a mark that “disparage[s]” persons. After the decision, the Patent and Trademark Office received registration applications for marks containing other racial slurs and began approving them, except for one. For this slur, the agency suspended its decision pending the outcome in another trademark case before the Court, involving a related provision of the Act that prohibits the registration of “immoral or scandalous” matter. In Iancu v. Brunetti, a divided Court ruled that this provision also violates the Free Speech clause of the First Amendment, thus allowing registration of “FUCT” for clothing. There now appears a fundamental right to register a racial epithet as a trademark. This Essay questions the Court’s decision and reasoning and elaborates on the consequences. In addition, although the Court’s decision in Tam was unanimous, there appear in Brunetti indications of judicial pause and a belated recognition of the dangers of Tam.

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