Immoral and Vulgar Trademarks Get the SCOTUS Seal of Approval

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By George Khoury, Esq. on June 26, 2019 3:17 PM

The High Court recently upheld the lower federal appellate court decision holding that the Lanham Act's prohibition on immoral and scandalous trademarks is unconstitutional.

In short, the decision explains that the rule consists of viewpoint discrimination because what is immoral and scandalous requires an evaluation of the content of the trademark. Despite the majority opinion ruling in favor of the clothing brand FUCT, it seems that several of the justices do not believe such trademarks should be allowed registration.

Not Holding FUCT Back

The owner of the clothing brand FUCT fought the trademark office's rejection of his clothing brand's mark on the basis that the Lanham Act's prohibition on the registration of immoral and scandalous marks was a violation of the First Amendment’s free speech protections. And while the majority opinion agreed, the justices noted that Congress could quickly do something to forestall the expected flood of vulgar and obscene trademark applications.

In dissenting opinions, justices explained that while the immoral aspect of the prohibition may rightly be a violation of the First Amendment, the ban on scandalous marks can be interpreted to be within the acceptable scope of the First Amendment. The dissenting voices also stressed the fact that vulgar trademarks can be used and protected by anyone with a valid claim, and that doesn't require a federal trademark registration.

What Comes Next?

The Brunetti case, in conjunction with the Tam case, has upended some rather established rules for trademark registrations, though, in all practicality, it doesn't mean much for practitioners. The rush to register scandalous and immoral marks may be rather short-lived as SCOTUS seems to be begging Congress to step in to right the wrong the Court was bound to make. However, if you're looking to expand your trademark practice, a marketing push highlighting the availability of scandalous and immoral trademark registration could result in some new business -- and potentially some appellate work if those marks get denied, or new legislation jeopardizes marks that get registered during the now-open window of time.

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