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Tags: supreme court | brunetti | trademarks | free speech

SCOTUS Decision Allows 'Immoral and Scandalous' Trademarks to Flourish

SCOTUS Decision Allows 'Immoral and Scandalous' Trademarks to Flourish

The U.S. Supreme Court is seen in Washington, D.C., June 24, 2019. The US Supreme Court ruled in favor of the clothing brand FUCT in a free speech case on Monday, saying the name could be trademarked. (Saul Loeb/AFP/Getty Images)

By    |   Monday, 01 July 2019 01:31 PM

In last week's historic Iancu v. Brunetti decision, the Supreme Court ruled that the Lanham Act’s prohibition of the registration of trademarks that are “immoral and scandalous” is unconstitutional, giving the green light for creators to obtain trademark protection for even the most vile and vulgar of brand identities.

Before digging into the significance of this ruling, let’s step back and review some fundamentals.

As a brief recap, trademarks are source identifiers; when a name, logo, slogan, or sound is used in conjunction with a good or service, it serves to alert the consumer of the source of the good upon which it is stamped. The idea here, of course, is to allow a company to distinguish itself from competitors with clever and catchy marks.

Consider for the moment the iconic Gucci logo. The branding department at the Gucci Corporation designed this logo so that every time a consumer sees it plastered on a pair of dress shoes, he won’t be aghast at the $700 price tag and will instead think something to the effect of, “Gucci means quality and quality shoes are expensive — these shoes are therefore worthy of the extraordinary price.”

Once a company has obtained proprietary trademark rights, the owner has the sole right to use the trademark, or any sufficiently similar iteration of the trademark, in conjunction with its stated goods and services. Clearly, branding is absolutely critical and without trademark protection, a brand leaves itself vulnerable to predatory competitors who may appropriate the successful company’s name and logo for use in conjunction with their own goods, thereby siphoning off entirely unearned business and sales.

Until the Supreme Court’s ruling on June 25, the Lanham Act did not allow for the Federal registration of marks that “consists of or comprise immoral or scandalous matter” (15 U.S.C §1052(a)).

If the astute reader finds himself wondering what precisely qualifies as immoral or scandalous, and whether the Federal Government should even be entitled to an opinion on this, he is in good company.

This issue was brought to a head when Eric Brunetti attempted to register the mark "FUCT" in the United States Patent and Trademark Office (USPTO) in connection with his “apparel” products.

Originally, the USPTO refused the registration due to the fact that it triggered the immoral or scandalous prohibition.

In response, Brunetti challenged this ruling by bringing his case before a Federal Circuit Court, which held that the Lanham Act’s immoral or scandalous provision violated the First Amendment.

The Supreme Court then agreed to hear the case and render a final opinion on the constitutional permissibility of the immoral or scandalous prohibition vis-à-vis First Amendment Free Speech guarantees.

In issuing the Court’s opinion, Justice Kagan, writing for the majority, first confirmed the supposition that trademark law is indeed bound by the basic constructs of First Amendment jurisprudence and, drawing on a perennial First Amendment standard solidified in Matal v. Tam, established that trademark restrictions, which are viewpoint based, are to be treated like all other viewpoint-based, government regulated speech; prima facie unconstitutional.

To understand why the immoral or scandalous prohibition is in fact viewpoint-based, one need only consider the moral judgment underpinning the FUCT refusal.

In denying Brunetti, the USPTO effectively said, we don’t like the word FUCT and what we suspect it stands for and will therefore discriminate against its proprietor, Brunetti, by not granting him trademark rights.

The Syllabus, prepared by the Reporter of Decisions, for this case articulated the essence of this point in the following manner;

So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts… the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. The statute, on its face, distinguishes between two opposed sets of ideas… This facial viewpoint bias in the law results in viewpoint discriminatory application.

Thus, in choosing to sanction speech that society favors while banning marks which contain speech which are socially unfavorable, the USPTO’s enforcement of the Lanham Act’s immoral or scandalous prohibition was ruled unconstitutional.

From a social-policy perspective, the Brunetti case is perhaps chiefly challenging for conservatives.

Indeed, the prospect of the inescapably conspicuous, vulgar, and counter-conservative FUCT mark proudly displayed on T-Shirts forces traditionally-oriented individuals with an otherwise unyielding commitment to the First Amendment to test the strength of their allegiance to Free Speech. But of course, the First Amendment is powerful precisely because it provides protections for speech, which are undesirable.

No, a Conservative resistance to First Amendment principles in this case would be the wrong battle to pick and fundamentally self-defeating, as this Country (at least in the public arena of the left-right culture war) no longer take for granted the supreme value of Free Speech.

In any event, I personally suspect that the fear of a commercial onslaught of 4 letter words (and worse) is frankly unfounded. Remember, a mark only rises to the level of a trademark if it is actually sold in commerce. Merely creating and designing a name/logo is not enough — the proprietor of the desired trademark has to demonstrate that he/she has made bona fide sales of products with the trademark attached to it. How many people would feel comfortable walking around with Base Ball caps marked with disgusting and vulgar names and symbols? I imagine, not too many.

Thus, while it is possible (and perhaps even probable) that there will be an increase in novelty products branded with less than savory names and logos, the ubiquity of such products would be nominal. Nevertheless, there is no denying the fact that the Supreme Court has now created the legal space, and perhaps more ominously, endorsed the cultural space, for such products to exist.

Ultimately, in this truly seminal case, the Supreme Court broke the back of trademark law as we know it, now allowing brand owners to reach into the most debased recesses of their imaginations in pursuit of designing and marketing the perfect trademark.

Abe Cohn is an attorney at Cohn Legal Group, a specialty group of a larger law firm, designed specifically to provide a boutique experience for entrepreneurs. Abe’s area of expertise is intellectual property and startup law. On judicial interpretation, Abe is a firm believer that constitutional originalism is the only viable and indeed sustainable judicial philosophy by which the courts may approach the interpretation of legal texts. Abe’s views on matters of the law are fundamentally rooted in his orientation towards a civil-libertarian approach to the role of government vis-à-vis individual freedoms. To read more of his reports — Click Here Now.

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Ultimately, in this truly seminal case, the Supreme Court broke the back of trademark law as we know it, now allowing brand owners to reach into the most debased recesses of their imaginations in pursuit of designing and marketing the perfect trademark.
supreme court, brunetti, trademarks, free speech
Monday, 01 July 2019 01:31 PM
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