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Federal Circuit Holds Scandalous or Immoral Marks Entitled to Registration
On Dec. 15, 2017, a unanimous Court of Appeals for the Federal Circuit held that despite Appellant's mark comprising “immoral or scandalous” matter under 15 U.S.C. 1052(a) (Section 2(a)), the U.S. Patent and Trademark Office (PTO) could no longer refuse federal registration of such marks on the grounds that this refusal violated the free speech clause of the First Amendment of the U.S. Constitution. See, In Re: Erik Brunetti, 15-1109.
Background of Immoral or Scandalous Marks
Section 2(a) of the Lanham Act allows the PTO to refuse registration of marks that “[c]onsist 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. …” The bar on immoral or scandalous marks was first codified in 1905 and although the words “immoral” and “scandalous” have different connotations, case law has included them in the same category. In determining whether a mark should be disqualified under Section 2(a), the PTO asks whether a “substantial composite of the general public” would find the mark scandalous. The public's perception of scandalousness may change with the times, and is often defined as “shocking to the sense of truth, decency or propriety.” Scandalousness is relevant “in the context of the marketplace as applied to only the goods [or services] described in the application.”
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