The U.S. Patent and Trademark Office (USPTO) is the government agency that processes all federal requests for formal trademark registration. The USPTO is given broad discretion to manage its authority per a federal law called the Lanham Act. Therefore, although it was surprising when the USPTO recently suspended all action on trademark applications concerned with specific subject matter earlier this month, it was within the agency’s authority to do so.
At issue are trademarks that are critical in some way of government employees or other government officials. The decision to suspend action on all pending trademark applications related to this subject matter occurred due to the U.S. Supreme Court’s (SCOTUS) decision to consider a writ of certiorari submitted to SCOTUS from the USPTO.
What does the USPTO want?
The USPTO has specifically asked SCOTUS to weigh in on its interpretation of Section 2(c) of the Lanham Act, which prohibits the USPTO from formally registering a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” This gets tricky when it comes to government officials, however, as satirical representation of these figures is traditionally viewed as protected speech per the First Amendment of the U.S. Constitution.
Until SCOTUS has weighed in on the USPTO’s request for guidance, the suspension of action on affected pending trademark applications will remain in effect. If this turn of events affects you or your company, it may be worth your time to seek legal guidance in order to better ensure that your intellectual property rights remain protected until the USPTO determines how to proceed.