U.S. Supreme Court

SCOTUS to decide whether ban on 'scandalous' trademarks is constitutional

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The U.S. Supreme Court on Friday agreed to decide whether the Lanham Act’s ban on “immoral” and “scandalous” trademarks violates the First Amendment.

The challenge was filed by a clothing brand that was denied a trademark for an unusual spelling of the F-word, report Bloomberg News, the Washington Post, Law.com and USA Today. The SCOTUSblog case page and cert petition are here and here; How Appealing links to additional coverage. The clothing line is FUCT.

The U.S. Court of Appeals for the Federal Circuit had struck down the ban on scandalous and immoral trademarks in December 2017.

The Supreme Court struck down another provision of the Lanham Act in June 2017 when it found that the ban on “disparaging” trademarks violated the First Amendment. The case, Matal v. Tam, was filed by an Asian-American rock band that wanted to trademark the name the Slants. The vote was 8-0; Justice Neil M. Gorsuch did not participate in the decision.

The new case is Iancu v. Brunetti. Clothing designer and artist Erik Brunetti had agreed that the Supreme Court should hear the case even though he won at the Federal Circuit.

Brunetti’s lawyer told the Supreme Court that the U.S. Patent and Trademark Office had made arbitrary decisions about what is scandalous.

The office had approved a trademark for another variation of the F-word, as well as the phrase “WTF IS UP WITH MY LOVE LIFE?!”

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