Monday, June 24, 2019

Supreme Court Says Ban on Immoral or Scandalous Trademarks Violates 1st Amendment

The U.S. Supreme Court today in Iancu v. Brunetti, (US Sup. Ct., June 24, 2018), held that the Lanham Act’s ban on registration of "immoral" or "scandalous" trademarks violates the First Amendment's free expression provisions.  The court's opinion written by Justice Kagan, and joined by Justices Thomas, Ginsburg, Alito, Gorsuch and Kavanaugh, concluded that the ban amounts to viewpoint discrimination.  In the case, the PTO had refused to register the trademark "FUCT" as the brand name for a line of clothing. Justice Kagan gave examples of the discriminatory manner in which the Act has been applied, including the following:
[T]he PTO refused to register trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Christian faith” and “shocking to the sense of propriety.” ... But once again, the PTO approved marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message suggested religious faith rather than blasphemy or irreverence.
Justice Alito also filed a concurring opinion, stating in part:
Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.
Three separate opinions dissenting in part were filed-- one by Chief Justice Roberts, one by Justice Breyer and one by Justice Sotomayor joined by Justice Breyer.  They all argued that while the ban on "immoral" trademarks violates the First Amendment, the ban on "scandalous" marks can be given a narrow construction that would save the provision. They contend it should be read to ban only obscene, vulgar or profane marks.  CNN reports on the decision.