The U.S. Supreme Court has agreed to hear arguments in the case of Iancu v. Brunetti. This, as you may recall, is an appeal regarding the constitutionality of the Lanham Trademark Act’s section 2(a) provision precluding registration of “immoral” or “scandalous” trademarks. In the wake of the much-discussed 2017 Supreme Court decision in Matal v. Tam, finding that the “disparaging marks” provision of that same section violates the First Amendment, the U.S. Patent and Trademark Office (USPTO) refused to register the mark FUCT for various articles of clothing.
The Tam case focused only on marks that “disparage” persons or groups or “bring them into contempt or disrepute.” The Brunetti application was refused based on the “immoral” and “scandalous” language of section 2(a). Like Simon Tam had done before him, Erik Brunetti appealed his refusal to the Trademark Trial and Appeal Board and thence to the Court of Appeals for the Federal Circuit (CAFC). The CAFC, as it had done in the Tam case, found the refusal inconsistent with the First Amendment, and the U.S. government asked the Supreme Court to hear the case. Last week, the Court agreed to do so. Continue Reading