Scandalous Trademarks: The Government Strikes Back
Crystal Broughan, Intellectual Property Attorney Oct 18, 2018 in Intellectual Property
Back in March of this year, I wrote about Erik Brunetti successfully arguing to the US Court of Appeals for the Federal Circuit that he should be approved to register the mark “Fuct” for clothing items, in part because the provision under the Lanham Act preventing him from doing so was unconstitutional.
In the Federal Circuit court’s written opinion, they agreed that the provision on immoral and scandalous marks did, in fact, violate free speech under the First Amendment. They used, as part of the basis for their argument, the US Supreme Court’s decision to allow the band, The Slants, to register their trademark, THE SLANTS, despite the fact the term is a disparaging one to Asian-Americans.
The case has since taken another turn.
As of September 7, 2018, the USPTO appealed the Federal Circuit court’s decision to the US Supreme Court, arguing that there is a difference between trademarks like THE SLANTS that are ‘viewpoint discriminatory’ (i.e., only Asian-Americans would feel disparaged by them) and trademarks like FUCT that fall into the profane/sexual category, making them ‘viewpoint neutral’.
Further, they argued that registering a scandalous term like FUCT conveys to the public that the government views those types of terms and images as appropriate brand identifiers.
While these arguments are not necessarily wrong, many wonder if they really change anything. The core argument seems to be that the Lanham Act restricts free speech in an unconstitutional way, and it’s hard to see how the USPTO arguments will prevail after the US Supreme Court’s decision in the case of Matal v. Tam, 137 S. Ct. 1744, 1769 (2017).
Of course, the final word now resides with the US Supreme Court. So we shall wait and see…Share