Vidal v. Elster

The Lanham Act’s “names clause,” which prohibits registering trademarks containing a living person’s name without their consent, does not violate the Free Speech Clause of the First Amendment. Justice Clarence Thomas authored the 6-3 majority opinion of the Court. While the “names clause” restriction is content-based since it depends on whether a mark contains a name, it is viewpoint-neutral because it applies regardless of the message. Due to trademark law’s historical coexistence with the First Amendment and its inherently content-based nature, the restriction does not need to satisfy heightened scrutiny. There is a deep historical tradition of restricting the trademarking of names. Under common law, people could only trademark their own names and could not prevent others with the same name from using it. This tradition reflected two key principles: that people have ownership rights over their own names, and that trademarks serve to identify the source of goods and protect the reputation of their makers. The names clause follows this tradition by preventing people from exploiting others’ names and reputations without consent, similar to how the Court previously upheld restrictions on using the word “Olympic” without the U.S. Olympic Committee’s permission. Justice Brett Kavanaugh authored an opinion concurring in part, in which Chief Justice John Roberts joined. Justice Amy Coney Barrett authored an opinion concurring in part, in which Justice Elena Kagan joined, and in which Justices Sonia Sotomayor and Ketanji Brown Jackson joined in part. Justice Sotomayor authored an opinion concurring in the judgment, in which Justices Kagan and Jackson joined.