Supreme Court Holds Section 2(a) Ban on Registration of Immoral or Scandalous Marks Unconstitutional

In case you haven't heard, the U.S. Supreme Court has ruled that Section 2(a)'s "immoral or scandalous" bar to trademark registration "infringes the First Amendment" and is therefore invalid as unconstitutional. Iancu v. Brunetti, 588 U.S. ____, 2019 USPQ2d 232043 (2019). Rather than adding yet another article to the thousands already written about Brunetti, let me provide my nutshell summary of the decision: the Government cannot refuse to register a mark just because it doesn't like the mark. For a more scholarly take on the decision, I suggest Prof. Rebecca Tushnet's comments at her 43(b)log (here).

Brunetti's application for the mark FUCT for clothing will now be published for opposition. Some suggest that a certain British clothing company might oppose on Section 2(d) grounds. Or a competitor might challenge the mark on the ground that the term is a common meme or expression that consumers would not perceive as a source indicator.

In any event, based on my own decades of experience in trademark law, I doubt that this decision will have any significant impact on trademark practice. There are certainly other recent Supreme Court rulings whose impact dwarfs that of the Brunetti decision.

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TTABlog comment: What say you?

Text Copyright John L. Welch 2019.