Here’s a question that came up in a panel that I was on last week on some intellectual property issues. Suppose somebody makes a movie that contains completely loathsome content. Let’s say the film seeks to justify racism, sexism, or you-name-it ism. I would venture to say that nobody would argue that the creators of such a movie could be denied a copyright in their work. That’s true even for child pornography, though there the copyright would be of little or no value because distribution or possession is a crime.
Why, then, does federal trademark law permit the PTO or a court to refuse or invalidate a registration on the grounds that the mark is equally offensive? The Federal Circuit en banc recently held in In re Tam that this authority was unconstitutional, and I suspect that the Supreme Court will take this case and affirm. But I’m curious to hear what the counterargument is? Are marks different from copyrights for purposes of First Amendment analysis?