Friend-of-the-blog, MEET THE BLOGGERS sponsor, and First Amendment expert Marc J. Randazza has published a timely article entitled “Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights,” Nevada Law Journal, Vol. 16, No. 1 2016). [Free subscription download here].
In the case of intellectual property rights (IPRs), some nations erect barriers to the protection of IPRs on the basis of “morality.” This paper will examine the implications of morality-based impediments to the enforcement of IPRs and their supportability under international agreements.
Commenting on the potential impact of In re Tam, Mr. Randazza posits that the recent CAFC ruling “signals a sea change in how the United States may look at morality issues in the trademark realm.”
After decades of frustration, the First Amendment argument against Section 2(a) finally prevailed, as In re Tamexplicitly overruled any support that clause might have found from In re McGinley. *** While In re Tam did not directly confront the immoral and scandalous clause, it confirmed the theory that Section 2(A) is flawed, and cannot withstand constitutional scrutiny.