“Trump too Small”
摘要
The Lanham Act’s name clause (15 U.S.C. §1052(c)) does not violate the First Amendment. When enforcing the First Amendment’s prohibition against abridging freedom of speech, it is necessary to distinguish between content-based and content-neutral regulations of speech. Trademark restrictions that discriminate based on viewpoint violate the First Amendment. Although the names clause is not viewpoint based, it is content based because “it applies to particular speech because of the topic discussed or the idea or message expressed”. Because of the uniquely content-based nature of trademark regulation and the longstanding coexistence of trademark regulation with the First Amendment, a solely content-based restriction of trademark registration need not be evaluated under heightened scrutiny. The history and tradition of restricting trademarks containing names is sufficient to conclude that the names clause is compatible with the First Amendment.