Also known as: disparaging mark · disparagement
Written by attorneys · grounded in primary & secondary sources — see below
A publication that disparages the quality of another's land, chattels or intangible things and thereby causes pecuniary loss to the owner.
NimbusCloud published a report falsely stating that DataHaven's storage platform permanently corrupts user files. Several corporate customers canceled contracts with DataHaven after reading the report. DataHaven sued for injurious falsehood seeking recovery of the resulting pecuniary losses. The court examined whether the publication directly caused the cancellations and whether expenses to counteract the statements were recoverable.
Simon Tam applied to register The Slants as the name of his Asian-American rock band. The examining attorney refused registration on the ground that the mark disparaged persons of Asian descent. Tam challenged the refusal as unconstitutional viewpoint discrimination in the trademark registration system.
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Erik Brunetti sought registration of a mark containing a vulgar term for apparel. The USPTO refused registration on the ground that the mark was scandalous. Brunetti argued that the refusal constituted impermissible viewpoint discrimination under the First Amendment.
Lexmark publicly asserted that Static Control's business was illegal and that its products infringed Lexmark patents. Static Control sued under the Lanham Act alleging that the statements damaged its business reputation and caused lost sales. The court analyzed whether the false statements about the competitor's products and legality proximately caused the claimed economic harm.
Yes. Trademarks constitute private speech. A statutory or administrative bar on registering marks because they disparage persons or groups amounts to unconstitutional viewpoint discrimination that fails strict scrutiny.
The plaintiff must show that the publication was a substantial factor in causing the loss and that the loss resulted directly from the effect of the publication on third parties or from reasonable expenses incurred to counteract the statements.
Yes. Both defamation and injurious falsehood require a false statement of fact. When the challenged statements accurately describe the plaintiff's conduct, the claims fail regardless of the resulting economic harm.
…beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U. S. C. §1052(a). This case involves the disparagement clause. Simon Tam, lead singer of the Asian-American dance-rock band The Slants, chose this moniker in order to “reclaim” and “take ownership” of stereotypes about people of Asian…