Will 'Subjective Determination' Gain Steam at the USPTO after Federal Decision on 'Trump' Trademark Fight?
Partner Dyan Finguerra-DuCharme, a co-chair of Pryor Cashman’s Trademark Group, recently spoke to Law360 about a new federal ruling that sparks discourse around competing publicity and freedom of speech.
In 2018, an apparel designer named Steve Elster sought to register what some consider a disparaging phrase against former U.S. President Donald Trump with the U.S. Patent and Trademark Office. The Trademark Trial and Appeal Board refused to grant a trademark registration on the words. The Federal Circuit has since reversed that decision in a ruling that could make a notable impact on conversations around trademark regulations.
According to Law360:
This ruling may open the door to a "subjective determination" by the USPTO as to whether a trademark "expresses a message that is critical or is [political] 'commentary,' thereby dodging the need for consent," according to Dyan Finguerra-DuCharme of Pryor Cashman LLP.
"Without specific guidance on how examiners should make that assessment — other than subjectively — we will likely see inconsistent decisions that will force public figures to protect their right to publicity in either opposition proceedings or in court," Finguerra-DuCharme said.
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