When Trademark Law Met Constitutional Law: How a Commercial Speech Theory Can Save the Lanham Act

Abstract

On June 19, 2017, the Supreme Court sent shockwaves through the bedrock of trademark law with its decision in Matal v. Tam. Justice Alito’s majority opinion declared the disparagement clause of the Lanham Act unconstitutional due to viewpoint discrimination. Two years later, on June 24, 2019, in Iancu v. Brunetti, the Court continued to shake the foundation of trademark law by declaring the immoral and scandalous clause of the Lanham Act unconstitutional due to viewpoint discrimination. Both the Tam and the Brunetti Courts, however, provided no enlightenment for practitioners regarding whether trademarks are commercial speech. By failing to answer this crucial question, the Court left open the issue of available limits on the government’s restrictions on speech, or if there are even limits at all. This Note argues that the law should treat trademarks as commercial speech. The Central Hudson test for intermediate scrutiny is appropriate for identifying a compelling government interest that is related to trademark restrictions at issue. Otherwise, a strict scrutiny analysis of trademarks jeopardizes a vast majority of the United States’ signature trademark act: the Lanham Act.