Legal Blog
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 at or
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.
ABOUT OFFIT KURMAN
Offit Kurman is one of the fastest-growing, full-service law firms in the mid-Atlantic region. With over 185 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our twelve offices serve individual and corporate clients along the I95 corridor in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.
Find out why Offit Kurman is The Better Way to protect your business, your assets and your family by connecting via our Blog, Facebook, Twitter, Instagram, YouTube, and LinkedIn pages. You can also sign up to receive LawMatters, Offit Kurman’s monthly newsletter covering a diverse selection of legal and corporate thought leadership content.
MARYLAND | PENNSYLVANIA | VIRGINIA | NEW JERSEY | NEW YORK | DELAWARE | WASHINGTON, DC
