What If NAFTA Requires Something That Violates the U.S. Constitution?
Article 1708.14 of NAFTA says:
Each Party shall refuse to register trademarks that consist of or comprise immoral, deceptive or scandalous matter, or matter that may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or any Party's national symbols, or bring them into contempt or disrepute.
This provision reflects U.S. law. The relevant section of the statute is here:
§1052. TRADEMARKS REGISTRABLE ON THE PRINCIPAL REGISTER; CONCURRENT REGISTRATION
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it--
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; ...
Today, the U.S. Supreme Court weighed in on the constitutionality of a key part of this statute, and found that it violates the Free Speech Clause of the First Amendment. Here's the basic conclusion:
The Lanham Act contains provisions that bar certain trademarks from the principal register. ...
At issue in this case is one such provision, which we will call “the disparagement clause.” This provision prohibits the registration of a trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” §1052(a). This clause appeared in the original Lanham Act and has remained the same to this day. See §2(a), 60 Stat. 428.
...
... we hold that the disparagement clause violates the Free Speech Clause of the First Amendment. ....
For the reasoning behind this conclusion, read the opinion and a concurrence, or see Eugene Volokh here.
So what are the implications of a NAFTA obligation requiring something that is unconstitutional? One obvious implication is that in the upcoming NAFTA renegotiation, they might want to take this obligation out.