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On June 24, 2019, the Supreme Court decided Iancu v. Brunetti, a case considering whether a provision of the Lanham Act prohibiting the registration of “immoral or scandalous” trademarks infringes the First Amendment.

Business owner Erik Brunetti applied to register his clothing brand’s trademark, “FUCT,” (pronounced as the individual letters F-U-C-T) but was refused by the U.S. Patent and Trademark Office (PTO) because the Lanham Act prohibits registration of marks that consist of or comprise “immoral or scandalous” matter.  The PTO Trademark Trial and Appeal Board deemed the mark vulgar and indicated that it carried “negative sexual connotations,” and in association with Brunetti’s website imagery and products conveyed misogyny, depravity, and violence.  Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, which held that the Lanham Act’s prohibition violated the First Amendment. The Supreme Court then granted certiorari to address the lower court’s invalidation of the federal statute.

By a vote of 6-3, the Supreme Court upheld the judgment of the Federal Circuit.  In an opinion delivered by Justice Kagan, the Court held that the Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks constitutes viewpoint discrimination that infringes the First Amendment. 

Justice Kagan’s majority opinion was joined by which Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh.  Justice Alito filed a concurring opinion. Justice Breyer and Chief Justice Roberts filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.

To discuss the case, we have Thomas Berry, Attorney at the Pacific Legal Foundation.