Greenspoon Marder Client Alert: Supreme Court Strikes Down Ban on Scandalous Trademarks in Iancu v. Brunetti

Intellectual Property Blog Jun 24, 2019

It is not every day that the United States Supreme Court strikes down a federal law that has been in effect for decades. That is exactly what happened today, when the Supreme Court ruled in a 6-3 decision that the portion of the Lanham Act banning “immoral or scandalous” material, codified in 1947, was a violation of the First Amendment. This decision really was not a surprise in light of the 2017 ruling on disparaging trademarks in the Matal v. Tam case regarding the band name “The Slants” as discussed in a prior blog post.

For the first 70 years of the Lanham Act, the United States Patent and Trademark Office refused registration of any marks deemed “immoral” or “scandalous.” Now, as written by Justice Kagan, the majority held that the provision infringes the First Amendment because it “disfavors certain ideas,” constituting viewpoint discrimination.

In the case, the Court sided with Erik Brunetti, whose trademark application for the brand name FUCT (for a clothing line) was denied by the USPTO.

Justice Kagan was joined by Justices Thomas, Alito, Kavanaugh, Gorsuch and Ginsburg. Chief Justice Roberts and Justices Breyer and Sotomayor concurred in part and dissented in part.

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