Supreme Court Says Law Banning Registration of “Scandalous” Trademarks is Unconstitutional
Get ready for the 4-letter-word free-for-all. The Supreme Court upheld the decision of the Court of Appeals for the Federal Circuit finding that the provision in Section 2(a) of the Trademark Act requiring the US Patent and Trademark Office to refuse registration of trademarks that it determines to be “scandalous” or “immoral” violates freedom of speech under the First Amendment.
We will avoid printing the trademark at issue in the case so that this post will be safe for all ages. Let’s just say it’s a spelling variation on a past tense of a word you still can’t say on broadcast TV.
Justice Elena Kagan delivered the 6-3 opinion in In re Brunetti, holding that the ban is not “viewpoint-neutral” and is unconstitutional.
Numerous trademark applications have been suspended pending the outcome of this decision. They will now be examined on all of the usual grounds – likelihood of confusion with other marks, mere descriptiveness, and the like – but will not be refused based on the offensiveness of their content.
If you have questions on this decision or any other related topics, please contact Laura Winston ator
ABOUT LAURA WINSTON
Laura J. Winston is a principal in the firm’s intellectual property group. Ms. Winston focuses her law practice primarily in the areas of trademarks, copyrights and the internet, representing a broad range of clients from individual business owners and small startup ventures to established Fortune 500 and publicly-traded companies both domestically and abroad. Ms. Winston practiced both at large firms and specialized intellectual property firms, before co-founding an intellectual property boutique firm. Her industry experience covers various industries as diverse as pharmaceuticals and medical devices, print and online publishing, computer-related goods and services, alternative energy, and travel and transportation.
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