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Rejecting immoral or scandalous trademarks is unconstitutional

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

On June 24, the U.S. Supreme Court struck down part of federal trademark law in the Lanham Act, finding that its prohibition on registration of immoral or scandalous trademarks violated the right to free speech and expression that the First Amendment to the U.S. Constitution guarantees.

Streetwear branding

Erik Brunetti tried to register the trademark "FUCT" -- which he says stands for Friends U Can't Trust and pronounced as each of the four letters in a row -- as a mark for his line of "streetwear" clothing, according to Courthouse News. The U.S. Patent and Trademark Office (USPTO) denied his application based on the statutory prohibition on immoral or scandalous marks, holding that the mark was "vulgar."

No viewpoint biases

The U.S. Supreme Court in Iancu v. Brunetti held that the law prohibiting immoral or scandalous marks was unconstitutional and not enforceable. In a previous decision, the Supreme Court invalidated a similar ban on trademarks that were disparaging because disparagement is based on people's viewpoints in violation of the First Amendment's protection of free speech and expression.

Following that precedent, the court concluded that deciding whether a mark is "immoral or scandalous" also depends on a person's viewpoint. Like disparagement, immorality or scandal "disfavors certain ideas ... [and] [t]he government may not discriminate against speech based on the ideas or opinions it conveys."

Floodgates?

Commentators in the media speculate that this decision may result in a flood of applications to register trademarks that will be vulgar and offensive to many people. On the other hand, how many businesses seeking to appeal to a broad customer base would select a mark that's highly offensive, if not repellant?

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