Cognate's Trademark Blog

World Trademark Review Article: What next for trademark jurisprudence at the Supreme Court? Experts have their say

  • Justice Anthony Kennedy announces he will step down from US Supreme Court
  • Predicted that his retirement will lead to a conservative majority on the bench
  • Trademark experts split on future; “could broaden the ability to enforce”

Justice Anthony Kennedy of the US Supreme Court announced his imminent retirement yesterday, meaning that US President Donald Trump will now have a second opportunity to nominate a justice. With the prospect of a more right-thinking Supreme Court bench, leading IP attorneys are split over what it means for trademark cases…

Monica Riva Talley, a director and head of the trademark and brand protection practice at Sterne Kessler, notes there could be a couple of ways that yesterday’s development shapes the future. “There are two possible ways in which a more conservative court may impact the interpretation of trademark rights and the Lanham Act,” she explains. “First, conservative courts seem skeptical of laws that may chill lawful speech. The portion of the Lanham Act that prohibits registration of disparaging marks was already struck down as unconstitutional by the current Court (Matal v Tam), and the similar prohibition on registration of scandalous and immoral marks is on shaky ground, awaiting possible review by the Supreme Court. Second, conservative courts are reputed to be more pro-business, so it is conceivable that such a court would be open to a broadening the ability to enforce accorded to trademark owners.”

Full article at

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