High Court Strikes Down Ban On Offensive Trademarks

Visitors line up to enter the Supreme Court on Capitol Hill in Washington Monday

Visitors line up to enter the Supreme Court on Capitol Hill in Washington Monday

On Monday, the U.S. Supreme Court struck down the Lanham Act's ban on "immoral or scandalous" trademarks, claiming the ban violates the First Amendment by engaging in viewpoint discrimination.

The majority decision, written by Justice Elena Kagan and joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Neil Gorsuch, and Brett Kavanaugh, ruled that this part of the Lanham Act is unconstitutional because it discriminates on the basis of viewpoint. He also admitted that such trademarks "serves only to further coarsen our popular culture", and that the justices are "not legislators and can not substitute a new statute for the one now in force". The office approved "Praise the Lord" for a game and "Jesus Died for You" on clothing. "Indeed, a business owner might even use a vulgar word as a trademark, provided that he or she is willing to forgo the benefits of registration".

"Of course, all these decisions are understandable". They argued that the statute doesn't stand because it "infringes the First Amendment" and "disfavors certain ideas".

The Trump administration had defended the provision, arguing that it encouraged trademarks that are appropriate for all audiences.

In 2011, Erik Brunetti attempted to register the trademark "FUCT" for a clothing brand he had founded in 2011.

In the 2017 Supreme Court case Matal v. Tam, the Court struck down the Lanham Act's separate prohibition of trademarks that "disparage. persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute" as unconstitutional under the First Amendment.

The justices, including fierce First Amendment advocate Chief Justice John Roberts, weren't all thrilled about the prospect of opening up federal registration to things like the actual F-word, the past tense of which sounds exactly like Fuct is pronounced. Sotomayor said the government will now have no choice but to register "the most vulgar, profane or obscene words and images imaginable".

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Justice Samuel Alito said in a concurring opinion that Congress could pass a "more carefully focused statute" that would preclude registration of vulgar trademarks. Brunetti opened the line in 1990 aimed at 20-somethings. But that's not what the law says and a key issue is that it does not draw the line there, it "covers the universe of immoral or scandalous", stepping into the world of viewpoint, the court found.

"The Supreme Court reviewing and hearing this case is opening the conversation for all Americans' (right to) free speech, which I believe can only lead to a positive dialogue, regardless of the Supreme Court's decision", Brunetti said in April. The trademark office concluded that the FUCT mark "communicated misogyny, depravity, and violence", and rejected the registration. Among those on hold were applications by the all-women music groups Pussy Riot and Thunderpussy over their band names. But trademarks have been granted for "FCUK" and "Handjob Nails and Spa".

The justices' ruling was in some ways expected because of one the court made two years ago.

The three justices would have upheld the ban on scandalous trademarks but not the ban on immoral trademarks.

Critics of the vulgarity ban said it couldn't be applied consistently. The U.S. Patent and Trademark Office rejected drug-related trademarks such as "You can't spell healthcare without the THC" for pain-relief medication, and "Ko Kane" for a beverage.

The Justice Department declined to comment.

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