Amy Coney Barrett Breaks With Supreme Court Originalists

The U.S. Patent and Trademark Office denied Elster’s application, citing a provision in the Lanham Act, the flagship federal trademark law, known as the “names clause.” The clause generally forbids the agency from registering trademarks that include a “name, portrait, or signature identifying a particular living individual” without that person’s consent. According to the PTO, the clause avoids confusion in the marketplace over whether certain people endorse certain products, which could unfairly bolster one’s own goods or even undercut a competitor.

Elster sued the agency in federal court on First Amendment grounds. He argued that the PTO examiner had discriminated against him based on the content of Elster’s proposed trademark. The Federal Circuit Court of Appeals, which exclusively hears appeals from certain federal agencies, sided with Elster in a ruling two years ago. The PTO asked the Supreme Court last year to intervene and reinstate the names clause.

While the First Amendment generally forbids the government from curtailing speech, not all such restrictions are equal. Courts are least forgiving when the government restricts speech based on the speaker’s viewpoint—say, for example, if it allows unauthorized Trump-related trademarks, but not Biden-related ones. In the recent cases Matal v. Tam and Iancu v. Brunetti, the justices struck down restrictions against trademarks that were considered either “disparaging” or “immoral and scandalous” for that reason.