The Lanham Act’s anti-disparagement provision which bars registration of trademarks that disparage persons, institutions, beliefs or national symbols violates the First Amendment. A trademark is not government speech, nor is it a government subsidy of a type that would permit the government to dictate speech of those accepting the subsidy. The anti-disparagement provision fails even the relaxed commercial speech test under the First Amendment since it serves no substantial governmental interest and is not narrowly drawn. It would prevent registration of a trademark that disparaged persons deserving disparagement like racists or sexists.
United States Supreme Court (Alito, J.; Kennedy, Ginsburg, Sotomayor, Kagan & Thomas concurring in part & concurring in the judgment); June 19,2 017; 2017 WL 2621315