U.S. Supreme Court strikes down longstanding ban on “scandalous” trademarks

The U.S. Supreme Court recently struck down a section of federal law that prevented businesses from registering “immoral or scandalous” trademarks. In Iancu v. Brunetti, the Supreme Court ruled that the U.S. Patent and Trademark Office (“USPTO”) violated Erik Brunetti’s free-speech rights by denying the trademark registration of his clothing brand, FUCT.

All nine justices agreed that the prohibition of “immoral” trademarks in the Lanham Act was inconsistent with the U.S. Constitution’s First Amendment right of free expression and that the USPTO cannot “disfavor certain ideas.” However, the court was divided on the issue of whether “scandalous” trademarks can justifiably be prohibited. Justice Kagan, writing for the majority, called the Lanham Act’s provision with respect to immoral and scandalous trademarks “substantially overbroad”, stating that “there are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all.”

The decision followed the Court’s unanimous 2017 ruling in Matal v. Tam, in which the Court held that the USPTO could not deny an Asian-American band called "The Slants" a trademark based on the USPTO’s interpretation that the name was disparaging because it was a racist slur. In Iancu v Brunetti, the Court has affirmed just how far free speech extends within the trademark context.