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SCOTUS protects "scandalous" trademarks in 2019

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.

In a Supreme Court of the United States (SCOTUS) decision, the Court found a statutory bar to trademark protection was unconstitutional. The year 2020 promises to bring more in the realm of trademark law, and it will be reported here when it happens.

Clothing designer seeks registration for "scandalous" trademark

The case, Iancu c. Brunetti, involved an attempt to register the trademark for the term FUCT. An entrepreneur submitted the trademark application to use with his clothing line. The PTO denied the application, stating it was against the Lanham Act which prohibits the registration of "immoral or scandalous matter."

SCOTUS ultimately held the provision in the Lanham Act was a violation of the First Amendment. However, because such terms typically do not make good candidates for trademarks that charm, attract, and engender trust in a brand, there have been and will likely be few new filings for what were previously barred "scandalous" trademark registrations.

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