Todd C. Bank v. Al Johnson’s Swedish Restaurant & Butik, Inc.

In Matal v. Tam, 137 S. Ct. 1744 (2017), this Court held that the disparagement clause of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which “prohibit[s] the registration of trademarks that may ‘disparage ... or bring ... into contemp[t] or disrepute’ any ‘persons, living or dead,’” Tam, 137 S. Ct. at 1751, quoting 15 U.S.C. § 1052(a) (ellipses in original), violates the First Amendment. The question is whether Tam thereby precluded disparagement as the basis of one’s standing under Section 14 of the Lanham Act, 15 U.S.C. § 1064, to challenge the validity of a trademark where the basis of the merits of the challenge, i.e., the challenger’s assertion as to why the mark is invalid, is unrelated to disparagement.

Whether a federal appeals court abuses its authority by sanctioning a party for arguing in favor of his position, even though: (i) the arguments and the position are meritorious; and (ii) the court claimed that the party had conceded that his position had been foreclosed by a decision of this Court, whereas the party, rather than having made such a concession, had argued that his position was not foreclosed by that decision.