Also known as: disparage · disparages · disparaged · disparaging · product disparagement · trade disparagement
Written by attorneys — see sources below.
2 senses
A false statement that discredits another's property, product, or business. Liability requires publication to a third party, falsity, and resulting pecuniary loss from the conduct of third persons or expenses to counteract the statement.
A false statement that discredits another's property, product, or business. Liability requires publication to a third party, falsity, and resulting pecuniary loss from the conduct of third persons or expenses to counteract the statement.
A statutory prohibition on registering marks that disparage persons, institutions, or beliefs. The prohibition constitutes an unconstitutional viewpoint-based restriction on private speech that fails strict scrutiny.
A statutory prohibition on registering marks that disparage persons, institutions, or beliefs. The prohibition constitutes an unconstitutional viewpoint-based restriction on private speech that fails strict scrutiny.
Each sense below has its own examples, sources, and questions.
Dakota Industries published a statement that Davenport Pharmaceuticals' new drug caused severe side effects. The statement was false. Several hospitals canceled orders, producing direct lost revenue and costs to litigate the resulting doubt about the drug's safety.
Decker Electronics told a potential buyer that Dominic Drake's equipment was defective and unsafe. The court first determined whether the statement was capable of a disparaging meaning and whether Drake's interest in the equipment's vendibility warranted protection before allowing the claim to proceed.
Derek Douglas told a customer that Devon Drake's software contained stolen code. The jury decided whether the customer understood the statement as disparaging Drake's product, whether the statement was false, and whether it caused Drake pecuniary loss through the lost sale.
A newspaper published an article implying that Hepps owned a business involved in organized crime. Hepps sued for injurious falsehood. The Court held that Hepps bore the burden of proving falsity because the speech concerned a matter of public concern.
Maurice S. Hepps served as the principal stockholder of General Programming, Inc. (GPI). GPI franchised a chain of Thrifty stores selling beer, soft drinks, and snacks. Hepps, the corporation, and several franchisees brought a defamation action in Pennsylvania state court against Philadelphia Newspapers, Inc., owner of the Philadelphia Inquirer, and reporters William Ecenbarger and William Lambert. Between May 1975 and May 1976 the Inquirer published five articles. The articles stated that Hepps and the Thrifty chain maintained links to organized crime. They claimed those links allowed influence over a state legislator described as a convicted felon. The stories reported that federal investigators had uncovered connections between Thrifty and underworld figures. They also stated that Thrifty had obtained competitive advantages through State Liquor Control Board rulings and that a grand jury was examining whether the chain received special treatment from the Governor's administration. At trial Hepps testified at length that the statements were false. He cross-examined the articles' authors on their accuracy. The trial court ruled that the plaintiffs bore the burden of proving falsity and instructed the jury accordingly. The jury returned a verdict for the defendants. The plaintiffs appealed directly to the Pennsylvania Supreme Court. That court held that the burden of proving truth remained with the defendants and remanded the case for a new trial. The United States Supreme Court noted probable jurisdiction.
3 common questions
A plaintiff must show a false statement understood as disparaging the plaintiff's interest, publication to a third party, and resulting pecuniary loss. The court decides whether the statement is capable of a disparaging meaning and whether the interest deserves protection. The jury decides whether the statement was understood as disparaging, whether it was false, and the extent of the loss.
Supporting sources
Recovery is limited to pecuniary loss that results directly from the effect of the publication on third persons, including impairment of vendibility, plus expenses reasonably incurred to counteract the statement such as litigation costs to remove doubt cast on the property's value.
Supporting sources
Disparagement targets statements about property, products, or business interests and requires proof of pecuniary loss. Defamation targets statements about personal reputation. Both require falsity, but disparagement focuses on economic harm rather than reputational injury.
Dynamic Solutions applied to register a mark containing a term critical of a rival industry group. The examiner denied registration solely because the term disparaged the group. Dynamic Solutions sued, arguing the denial suppressed private expression based on viewpoint.
Simon Tam sought registration of a band name chosen to reclaim a stereotype. The PTO refused on the ground that the name disparaged persons of Asian descent. Tam challenged the refusal as an invalid viewpoint restriction on private speech.
Simon Tam serves as the lead singer of the rock group The Slants, whose members are Asian-Americans. He chose the name in an effort to reclaim the term and drain its denigrating force as a derogatory reference to Asian persons. The group has incorporated childhood slurs into its lyrics and titled albums including The Yellow Album and Slanted Eyes, Slanted Hearts. Tam filed an application with the Patent and Trademark Office seeking registration of THE SLANTS as a trademark. The PTO examining attorney rejected the application after applying a two-part analysis and concluding that a substantial composite of persons of Asian descent would find the mark offensive. The attorney cited dictionary definitions labeling the term as derogatory and evidence that the band's name had prompted cancellation of a performance along with negative comments from online readers. Tam appealed the denial first to the examining attorney and then to the Trademark Trial and Appeal Board, which upheld the refusal. Tam then brought the case before the Federal Circuit. Sitting en banc, that court reversed the Board. The Government petitioned for certiorari, and the Supreme Court granted review.
View case1 common questions
Yes. Trademarks are private speech. A statutory bar on registering marks that disparage persons or institutions is a viewpoint-based restriction that cannot survive strict scrutiny. The government may not use the registration system to suppress speech based on disapproval of the speaker's viewpoint.
Supporting sources
…In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must…