Judge Dyk concurs in the result today only because he believes the content of Mr. Tam’s mark is so “indisputably expressive” that it cannot be regulated under the lesser standards applied to commercial speech. Dyk, J., concurring at *20-21. But if the expressive content of the mark precludes regulation, on what authority may the government grant Mr. Tam the exclusive right to use this mark in commerce? Whatever standard of scrutiny protects the content of Mr. Tam’s trademark from government regulation, that same standard must necessarily be overcome by the government’s substantial interest in the orderly flow of commerce, or no trademark could issue.To look at it from the flipside, there's a mismatch between the rationale for protecting commercial speech--it provides useful information!--and the rationale for giving registrants complete freedom to choose non-inherently informational symbols to which they attach meaning.
Tuesday, December 22, 2015
one note on In re Tam: TM as right to suppress others' speech
Judge Reyna's dissent makes a point that I think courts will find very hard to grapple with, whatever the fate of 2(a) or disparagement specifically: