Partner Anita Polott and associate Rachel Fertig summarize the 2017 trademark law decisions of the Federal Circuit in this American University Law Review article. In 2017, the Federal Circuit again championed the First Amendment and the freedom of trademark owners to register marks that the US Patent and Trademark Office (USPTO) had previously deemed unfit to print. The court also fully embraced the US Supreme Court’s unanimous affirmation of its 2015 In re Tam decision, which had declared the Lanham Act’s ban on disparaging marks under section 2(a) to be a First Amendment violation.
In December, the Federal Circuit’s In re Brunetti decision struck a second blow to section 2(a) by deeming its ban on “immoral” or “scandalous” marks unconstitutional. The Federal Circuit also issued ten other trademark decisions in 2017, which, as with prior years, represented less than three percent of its total docket. However, write Anita and Rachel, these decisions—which range from holding that the standard for awarding attorneys’ fees under the Lanham Act is the same as that under the Patent Act to articulating a three-factor test to determine ownership of a are likely to significantly impact the practice of trademark law for years to come.