In 2011, Los Angeles streetwear brand FUCT attempted to obtain a trademark but was refused because their brand name was considered immoral or scandalous, that is, offensive to a substantial portion of the population.
The 1946 Lanham Act grants to the Trademark Office the power to refuse the registration of trademarks which are immoral, deceptive, scandalous, or disparaging. While the Supreme Court’s decision in Matal v. Tam declared the refusal of disparaging marks contrary to the First Amendment, the remainder of Section 2(a) remains valid law.
Can the Trademark Office reject marks which might be considered “immoral” or “scandalous”? Prof. Kristen Osenga of the University of Richmond School of Law discusses content discrimination, free speech, and trademarks in Iancu v. Brunetti. Oral argument is April 15, 2019.
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As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speaker.
Learn more about Kristen Osenga:
https://law.richmond.edu/faculty/kosenga/
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Related Links & Differing Views:
The First Amendment Encyclopedia: “Viewpoint Discrimination”
https://www.mtsu.edu/first-amendment/article/1028/viewpoint-discrimination
UC Davis Law Review: “Denying Trademark for Scandalous Speech”
https://lawreview.law.ucdavis.edu/issues/51/5/Essays/51-5_Snow.pdf
IP Watchdog: “Iancu v. Brunetti: the Briefs Examined”
https://www.ipwatchdog.com/2019/01/10/iancu-v-brunetti-briefs-examined/id=104918/
Pacific Legal Foundation: “Can the government decline to register ‘scandalous’ trademarks?
https://pacificlegal.org/can-the-government-decline-to-register-scandalous-trademarks/
The Federalist Society: “Courthouse Steps Oral Argument: Iancu v. Brunetti”
https://fedsoc.org/events/courthouse-steps-oral-argument-iancu-v-brunetti
