Trademark Examination Guide 1-23 Regarding Section 2(c)

Pending the USPTO’s petition for certiorari to the U.S. Supreme Court to review the Federal Circuit’s In re Elster, 26 F.4th 1328, 2022 USPQ2d 195 (Fed. Cir. 2022) decision that Section 2(c) of the Lanham Act, 15 U.S.C. § 1052(c), is unconstitutional, the USPTO will be suspending action on pending applications involving marks subject to refusal under Section 2(c) that are critical of government officials or public figures. Examination Guide 1-23 (Feb. 22, 2023).

Section 2(c) of the Lanham Act, 15 U.S.C. § 1052(c), bars the registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.”

In re Elster concerns the TRUMP TOO SMALL mark which had been refused registration under Section 2(c). As previously discussed, that refusal was reversed by the Federal Circuit.

Advisory refusals under Section 2(c) will continue to be made, and the USPTO will suspend action on trademark applications in which registrability under Section 2(c) is the only issue—until the last of the following occurs: (1) a petition for certiorari is denied; or (2) certiorari is granted, and the U.S. Supreme Court issues a decision.


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