Happy Fourth of July!!!
In Iancu v. Brunetti, the Supreme Court confirmed that trademarks will no longer be refused registration because they constitute “immoral or scandalous” matter. Writing the 6-3 majority opinion, Justice Kagan stated that the bar against federal registration of an “immoral or scandalous” mark is unconstitutional because it violates the First Amendment.
As we celebrate Independence Day and our declaration “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” the United States Supreme Court recently reaffirmed another hallowed pillar of our country: the First Amendment and Freedom of Speech.
According to the Patent & Trademark Office:Since it was enacted in 1946, Section 2(a) of the Lanham Act prohibited the federal registration of a trademark that “[c]onsists of or comprises immoral … or scandalous matter.” The case originated from a trademark application filed in 2011 for the mark “FUCT”, covering various clothing goods. Although the Respondent, Erik Brunetti, declares the mark is pronounced as four letters, one after the other: F-U-C-T, anyone and everyone else reading the words would probably argue differently. But now, it appears anyone can register marks that some would find “immoral or scandalous matter” because refusing registration based on a viewpoint of whether a mark is “immoral or scandalous” necessarily favors one perspective over another and would violate the First Amendment.
Only time will tell whether this decision results in a rise in applications for marks that may previously have been refused based on the “immoral or scandalous” bar of immoral trademarks. And Congress may possible heed the words from the concurring Justices that they should amend Section 2(a) of the Lanham Act to include a narrower basis for refusal than the substantially overbroad “immoral or scandalous.” If Congress decided to amend the Lanham Act to refuse marks that were “obscene, vulgar, or profane”, some new trademark applicants might find themselves… fuct.
Please contact a US trademark attorney at Grell & Watson
We would be happy to discuss your potential trademark application and answer any trademark questions.