Thompson Coburn partner Mike Nepple as quoted in IP Watchdog on recent oral arguments for the pending U.S. Supreme Court case Vidal v. Elster, which concerns trademark registration under 15 U.S.C. § 1052(c) and the First Amendment. Observers concluded the justices are unlikely to grant trademark applicant Steve Elster’s bid to register a mark for t-shirts.
“From the arguments, it appears several justices are ready to find the ‘living individual’ statute is constitutional,” Nepple said. “Assuming the Court upholds the statute, a key question is how the Court decides the case.”
He also noted that Justice Neil Gorsuch stated the common law of trademarks had long allowed certain ‘content’ restrictions. “While likely not dispositive, the Justice said, ‘it’s pretty hard to argue that a tradition’s that’s been around … since the founding … is inconsistent with the First Amendment.’”
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