Supreme Court Holds Ban on Immoral or Scandalous Trademarks Unconstitutional
4 07 2019Ira Sacks & Mark Lafayette
LexBlog
June 30, 2019
On June 24, 2019, the United States Supreme Court, in Iancu v. Brunetti, reviewing the trademark application for “FUCT”, held that the Lanham’s Act’s provision, prohibiting the registration of “immoral[] or scandalous” trademarks, 15 U.S.C. 1052(a)(1), violated the First Amendment to the United States Constitution.
The Supreme Court first reviewed its decision in Matal v. Tam, 137 S. Ct. 1744, 582 U.S. ___ (2017), which found unconstitutional the Lanham Act’s bar on the registration of “disparage[ing]” trademarks. The Court noted that although the eight-Justice Court divided evenly between two opinions and could not agree on the overall framework for deciding the case, all Justices agreed on two propositions. First, if a trademark registration bar is viewpoint-based, it is unconstitutional. Second, the disparagement bar was viewpoint-based. Thus, in Tam, the Justices found unanimous common ground in that the government may not discriminate against speech based on the ideas or opinions it conveys. Accordingly, the Court observed that, under Tam, that “[i]f the “immoral or scandalous” bar similarly discriminated on the basis of viewpoint, it must also collide with the First Amendment.” . . .
Accordingly, the Court found the “immoral and scandalous” bar viewpoint-based and violative of the First Amendment.
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