Supreme Court Ruling for Offensive Trademark Invites Congress to Act

The U.S. Supreme Court has ruled that a federal ban on the registration of “immoral” or “scandalous” trademarks, such as the clothing label “FUCT,” violates the First Amendment.

In a 6-3 decision, the court said the nation’s 73-year-old trademark law violates the free speech rights of clothing designer Erik Brunetti, who had sought to trademark his brand of clothing.

Dallas intellectual property lawyer Justin S. Cohen of Thompson & Knight LLP said the ruling was not unexpected and seems to signal the court thinks Congress should deal with the issue.

“It was widely expected that the Supreme Court would find the ban on ‘immoral’ and ‘scandalous’ trademarks to be unconstitutional. But the court seems to invite Congress to ban swear words and obscene marks, suggesting that such a ban would be constitutional.

“I suspect we will see a new law banning marks that are ‘obscene, vulgar, or profane’ in the not-too-distant future. The days of having profane and obscene words and images as registered trademarks are probably numbered.

“Businesses may want to consider playing it safe and just avoid profane language no matter how clever. Chances are Congress will update the law on this issue.”

The case is Iancu v. Brunetti, case number 18-302, in the U.S. Supreme Court.

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