In RE:TAM en Banc

I agree that the disparagement provision of 15 U.S.C. § 1052(a) (“§ 2(a)”) is unconstitutional on its face. I agree, moreover, that § 2(a) cannot survive the searching constitutional scrutiny to which the majority subjects it under the First Amendment to the United States Constitution. On this point, the majority rightly dispenses with this court’s precedent in In re McGinley, 660 F.2d 481 (C.C.P.A.1981) and its progeny. I write separately, however, because, I believe § 2(a) is also unconstitutionally vague, rendering it unconstitutional under the Fifth Amendment to the United States…