Supreme Court Paves The Way For Registration Of Offensive Trademarks

In Iancu v. Brunetti, No. 18-302 (June 24, 2019), the Supreme Court, citing the First Amendment, struck down a portion of the Lanham Act prohibiting registration of "immoral or scandalous" marks, just as it had previously struck down the portion of the Lanham Act barring registration of "disparaging" trademarks in June 2017.

The Court paved the way for an applicant to register the mark "FUCT" for a line of clothing, which an appeals board had found unregistrable as "highly offensive" and "vulgar." Because the law "disfavors certain ideas," Justice Kagan wrote, it violates the First Amendment. "Viewpoint discrimination is poison to a free society," Justice Alito wrote in his concurrence, saying that the Court must "remain firm" on this issue during "a time when free speech is under attack."

This case is unique both for its intersection between intellectual property and First Amendment law, and for its obvious puns IP lawyers will no doubt make about the state of the Lanham Act.

The case is Iancu v. Brunetti, No. 18-302 (June 24, 2019).