16 July, 2019

That's Just Offensive - US Supreme Court Allows for the Registration of 'Immoral' Trademarks

The notion of morality is deeply embedded in human society, coloring most facets of it in some ways. Whether it is laws prohibiting deplorable actions, or simply stopping you from saying hateful things (in some jurisdictions), morality is an important part of the legislative framework. In the world of IP you rarely deal with issues of morality, but sometimes they do crop up. In the last few years, the registration of 'disparaging' trademarks has been a hot topic in the US (discussed more here and here), but what about marks that one could class as immoral? The Supreme Court were therefore tasked with deciding this part of trademark law, and handed down their judgment very recently.

The case of Iancu v Brunetti concerned an application to register the mark "FUCT", which was the brand of Mr Brunetti's clothing line. Under examination by the USPTO, the application was rejected due to it being immoral due to vulgarity under 15 USC 1052(a). Mr Brunetti subsequently appealed the decision, arguing that it infringes on his First Amendment right to free speech, with the case ultimately landing on the Supreme Court's desk.

As decided in the Tam case, preventing the registration of 'disparaging' trademarks violated the First Amendment as it "...discriminate[d] against ideas that offend". The grounds for rejecting trademarks that are 'immoral' falls within the same provision of US legislation as rejecting the registration of 'disparaging' ones.

Justice Kagan, handing down the majority's judgment, swiftly determined that the provision similarly violates the First Amendment. The Government argued that the prohibition was a viewpoint-neutral one, and would only be restricted to certain kinds of immorality, therefore being somewhat restricted. The Court didn't buy this argument, and saw that "...It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material". This means that almost anything that fits that criteria could therefore be rejected by the USPTO.

The Court honed matters down further, noting that the provision aims to suppress certain views, albeit 'immoral' ones, and would violate free speech., even if allegedly captured through the use of "viewpoint-neutral" legislative language.

Justice Kagan wrapped matters up by drawing a line in the sand: "There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment".

While most Supreme Court decisions are incredibly important, the decision in this case is in no way revolutionary. The Court has clearly put an end to the limitation on registering negative trademarks, no matter how offensive or immoral. Applicants can therefore rejoice over the possibility to go ham on registering ever-more offensive marks to their hearts' content...

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