Page 5 Spring/Summer 2018 “If trademarks become governme nt speech through registration the government ‘is babbling prodigiously and incoher- ently,’” said Justice Alito in Matal v. Tam.1,2 On June 19, 2017, the Su- preme Court issued a deci- sion in Matal v. Tam. At issue in Tam was wheth- er: 1) the disparagement provision of the Lanham Act was unconstitutional under the First Amend- ment’s Free Speech Clause; 2) trademark reg- istration was government subsidized speech; and 3) the disparagement provi- sion survives First Amendment strict scruti- ny, or the less strict Cen- tral Hudson review of commercial speech. What is a Trademark? Before discussing the case in detail and its im- plications, let’s take a step back. What is a trademark? We see it around us every day. A trademark is a kind of intellectual property that functions as a source identifier of goods or services.3 Therefore, a trademark is the way a company communicates with its customers; the way the company tells the consumer who they are and which products and/or services are theirs. For example, Coca-Cola ®, Nike ®, Apple ®, Facebook ®, Disney ® etc. are all trade- marks. If you see a mug that says Disney ®, you know that mug was manufactured by The Walt Disney Company. “®” indicates that the trade- mark has been registered with the United States Patent and Trademark Office (“USPTO”). The ® sign should not be confused with the TM symbol. The TM symbol simply provides notice of common-law rights in a trademark and not that of a registered and federally protected trademark. Use of the TM symbol is just an informal claim by a company that it has trademark rights to that mark and others should not use it. Most importantly, even if that claim is valid, that company’s trademark rights are limited to the geographical area in which it uses that mark. A trademark can be a word, phrase, symbol, and/or design that identifies the source of the goods and/or services. A word mark is usually the name by which a product or service is on the market. Logos and labels can be trade- marked as well. Even certain colors can be trademarked. For example, as soon as we see a shoe with a red heel, we immediately know that it is a Christian Louboutin shoe. There- fore, the red colored heel is a source identifier and has also been trademarked. Shapes can be trademarked as well. The unique 4-sliced 3-Dimensional shape of the popular chocolate KitKat is trademarked. In fact, even sounds can be trademarked. The MGM Lion’s roar (yes, the one that plays before all MGM mov- ies) is trademarked. Now, not everything can be trademarked. Words, symbols, phrases, etc. that are merely generic cannot be trademarked. For example, a shop that solely provides laundry services cannot trademark the name “Laundry Shop” because that would restrict all other laundry shops from marketing their services. There- fore, a generic mark is one that describe qual- ities, characteristics, or ingredients of the goods and/or services a business sells. A mark may also be descriptive. In such a situation, the mark describes one or more characteris- tics of a business’s good or service. In order to get trademark protection, such marks need to evolve from indicating what the goods are to whom do the goods belong. If the mark is ca- pable of doing that, then it is said to have ac- (Continued on page 12) Supreme Court Slants in Favor of the First Amendment By Vishwanath Kootala Mohan and Mariah Witt *