On Monday, June 19, 2017, the Supreme Court released a decision in a high profile trademark case rejecting the Lanham Act’s rule against disparaging trademarks as being facially invalid and unconstitutional.

The Lanham Act, since its enactment in 1946, has contained a provision stating that a trademark should not be refused registration on the principal register unless it “consists of … matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (See 15 U.S.C. §1052). Since the enactment of the Lanham Act, courts have routinely found that the disparagement rule does not violate the First Amendment because it does not preclude actual use of the mark in commerce nor prevent the establishment of common law trademark rights, but is rather just a bar to federal registration.…