Names, Flags, and Offense: The Content-Based Section 2 Bars After Tam, Brunetti, and Elster
By Casey Scott McKay ·
In seven years the Supreme Court struck two provisions of Section 2 and upheld a third, and the reasoning it used to do all three is not what most practitioners think it was. This article maps what remains of the content-based registration bars and explains the line the Court actually drew - not between offensive and inoffensive marks, but between viewpoint discrimination and everything else. It works through the false-suggestion-of-a-connection bar that has quietly become the most active provision in Section 2(a), the flags and insignia bar that is narrower than examiners sometimes think, and the names clause that Elster upheld on the strength of history rather than tailoring. It explains what filled the vacuum left by the scandalousness bar, why the answer is a doctrine nobody voted on, and what the concurrences left open. A worked example runs a difficult mark through all of it.
IP and Technology > Trademarks | Article | Published 20 June 2025 - Updated 23 January 2026 | Casey Scott McKay - marksy.us
Summary. In seven years the Supreme Court struck two provisions of Section 2 and upheld a third, and the reasoning it used to do all three is not what most practitioners think it was. This article maps what remains of the content-based registration bars and explains the line the Court actually drew — not between offensive and inoffensive marks, but between viewpoint discrimination and everything else. It works through the false-suggestion-of-a-connection bar that has quietly become the most active provision in Section 2(a), the flags and insignia bar that is narrower than examiners sometimes think, and the names clause that Elster upheld on the strength of history rather than tailoring. It explains what filled the vacuum left by the scandalousness bar, why the answer is a doctrine nobody voted on, and what the concurrences left open. A worked example runs a difficult mark through all of it.
Keywords: matal v tam · iancu v brunetti · vidal v elster · section 2(a) disparagement · immoral or scandalous marks · false suggestion of a connection · notre dame four-part test · section 2(b) flags and insignia · section 2(c) name of living individual · written consent to register · viewpoint discrimination · content-based but viewpoint-neutral · history and tradition trademark · failure to function · government speech doctrine · unconstitutional conditions · deceptive matter budge · right of publicity overlap · trump too small · examination guide 2-19
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