Can you Obtain Registration of Scandalous Trademarks?
The Supreme Court and Scandalous Trademarks
The Supreme Court has agreed to hear a high-profile trademark case that could redefine whether “scandalous” or vulgar marks may be registered under U.S. trademark law. The decision will further clarify how free speech protections apply to trademarks following the Court’s recent constitutional rulings.
The Supreme Court Will Review the Rejection of the “FUCT” Trademark — Designer Erik Brunetti’s trademark application for “FUCT” was initially rejected by the U.S. Trademark Office on the grounds that the mark was scandalous and a homonym for vulgar language, which trademark law has historically barred from registration. Although Brunetti ultimately prevailed on appeal, both he and the appellate court requested Supreme Court review due to the Court’s recent reshaping of trademark law and its treatment of free speech issues.
Recent Trademark Decisions Have Expanded Free Speech Protections — In Matal v. Tam, the Supreme Court struck down prohibitions on registering “disparaging” trademarks, holding unanimously that trademarks constitute private speech rather than government speech. That ruling paved the way for registration of marks previously denied on moral or reputational grounds and has influenced other disputes, including those involving the Washington Redskins. Many experts expect the Court to extend similar reasoning to scandalous marks, further limiting the government’s ability to deny registration based on content.
Intent and Vulgarity May Test the Limits of Trademark Free Speech — Unlike Tam, where the petitioner sought to reclaim a derogatory term, evidence in the “FUCT” case suggests that the mark was intentionally designed to invoke vulgarity. The Supreme Court may use this case to determine whether trademark protection can be denied based on the applicant’s intent, the viewpoint expressed, or the explicit nature of the content. How the Court balances free speech rights against longstanding restrictions on scandalous marks could significantly impact future trademark registrations.
For more information, see our blog post Can One Obtain Registration of Scandalous Marks? The Supreme Court to Decide, Again.
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This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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