Fed. Circ. May Change Disparagement Analysis For TMs

Law360, New York (April 28, 2015, 11:14 AM EDT) -- By her April 20, 2015, peroration titled "Additional Views," Federal Circuit Judge Kimberly Moore urged the Federal Circuit to revisit In re McGinley, 660 F.2d 481, 484 (CCPA 1981). That authority has long precluded First Amendment challenges to 15 U.S.C. §1152(a) [§2(a) of the Lanham Act], the section barring registration of disparaging marks that also resulted in the 2014 cancellation of Pro-Football Inc.'s registrations of its "Redskins" marks. Judge Moore's 24-page "Additional Views" were appended to and were at odds with the 11-page opinion she authored in which the Federal Circuit initially affirmed a §2(a) refusal to register "The Slants." In a surprising development, on April 27, 2015, the Federal Circuit vacated the April 20, 2015, panel opinion, and reinstated the appeal to be heard en banc, sua sponte under 28 U.S.C. §46 and Federal Rule of Appellate Procedure 35(a)....

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