This Article analyzes the First Amendment arguments against section
2(a)’s disparagement bar with reference to the consequences of any
invalidation on the rest of the trademark statute. My fundamental conclusions
are that In re Tam is wrongly reasoned even given the Supreme Court’s
increased scrutiny of commercial speech regulations, and that to hold otherwise
and preserve the rest of trademark law would require unprincipled distinctions
within trademark law. More generally, the Supreme Court’s First
Amendment jurisprudence has become so expansive as to threaten basic
aspects of the regulatory state; the result of subjecting economic regulations
such as trademark registration to strict First Amendment scrutiny shows the
damage that can be done thereby.
The First Amendment Walks into a Bar: Trademark Registration and Free Speech,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol92/iss1/8