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SCOTUS Agrees to Hear Case Determining Federal Registrability of Immoral and Scandalous Trademarks
Many U.S. trademark attorneys were surprised in early January when the Supreme Court of the United States agreed to hear Iancu v. Brunetti. This case should determine the availability of federal trademark registration for “immoral” and “scandalous” marks – in this case, the acronym “FUCT” for a clothing line. Brunetti is the second case before the Court in three years to consider the constitutionality of the federal ban on registering certain categories of trademarks under Section 1052(a) of the Lanham Act.
The Court's willingness to take this case is particularly of note after its June 2017 decision in Matal v. Tam, 137 S. Ct. 1744 (2017), in which it upheld the U.S. Court of Appeals for the Federal Circuit's 2014 holding that Section 1052(a)'s ban on the registration of “disparaging” marks violated the First Amendment of the U.S. Constitution's protection for free speech. The Tam case involved the registrability of the mark “THE SLANTS,” the name of an Asian-American rock band; a parallel case about the “REDSKINS” mark for the name of the Washington, DC professional football team received the lion's share of media coverage and public interest.
After the Tam decision, most trademark attorneys and commentators assumed that federal courts — and, in particular, the Federal Circuit, with its position as the U.S.'s highest-ranking court (other than the Supreme Court) for intellectual property matters — would view “immoral” and “scandalous” trademarks as similarly protected speech, and also overturn the ban on their registration with the U.S. Patent and Trademark Office (USPTO). Immoral and scandalous trademarks are included alongside “disparaging” marks in Section 1052(a) of the Lanham Act,
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