Of late, multiple authors of this blog have followed the legal landscape around “scandalous” trademarks. In particular, this post follows up on the USPTO’s petition to the Supreme Court, which we previously covered.
A “scandalous” or “immoral” trademark is one which a member of the public would likely find “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable,” and generally offensive to one’s conscience or morality. Until recently, trademarks that were “scandalous” or “immoral” were prohibited. However, in December of 2017, the Federal Circuit, in In re: Erik Brunetti, found that the portion of the Lanham Act prohibiting scandalous trademarks unconstitutionally restricted free speech.
On January 4 of this year, the Supreme Court of the United States agreed to hear the appeal of In re: Erik Brunetti to conclusively determine whether the “immoral” or “scandalous” portion of the Lanham Act is in fact invalid under the First Amendment’s Free Speech Clause. In Iancu v. Brunetti, the Court is set to hear argument in April of 2019, with its final decision to come shortly thereafter. If the Supreme Court upholds the lower court’s decision, new and previously “scandalous” trademarks will likely be in front of the Trademark Office. Only time will tell what new and interesting trademarks consumers may start seeing if scandalous trademarks are no longer widely prohibited.
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