There is an inherent tension between the First Amendment and trademark law. For over 100 years the United States Patent and Trademark Office has protected American citizens from Marks of ill repute. In the wake of the In re Tam decision, this may become more difficult if not impossible. This comment analyzes In re Tam, as well as explores the First Amendment guarantee of free speech and trademark law, and how each intersects with each other. Additionally, this comment proposes solutions that will allow the government to continue protecting its citizens from Marks that should have no place in commerce.
Paul Sanders, It’s My Mark, I Can Offend If I Want To! The Waning of the Government’s Power to Protect its Citizens from Widespread Discriminatory Marks, 16 J. Marshall Rev. Intell. Prop. L. 505 (2017)