SCOTUS Opinion: Court Strikes Down Law Against Immoral or Scandalous Trademarks

The Lanham Act prohibits registration of any trademark that contains “immoral[] or scandalous matter.” In Iancu v. Brunetti, an applicant sought to trademark FUCT (pronounced F-U-C-T), but was denied by the Patent and Trademark Office. The applicant appealed, arguing that the Act’s restriction violated the First Amendment. The Federal Circuit struck down the restriction as unconstitutional. The Court, in a 6-3 opinion by Justice Kagan, affirmed, holding that the bar on immoral or scandalous content unconstitutionally discriminates based on viewpoint by favoring society’s sense of decency or propriety over anything that might differ. The majority declined to limit the Act’s prohibition to only those trademarks that might be considered lewd, sexually explicit, or profane, because that would require the Court to rewrite the law, which is not its place. Justice Alito filed a brief concurrence noting how the current statute could “easily be exploited for illegitimate ends,” and appeared to invite Congress to pass a “more carefully focused statute” aimed at “vulgar terms that play no real part in the expression of ideas.” Chief Justice Roberts concurred that the bar on immoral trademarks was overbroad, but argued in dissent that the restriction on “scandalous” material could be read more narrowly to prohibit obscene, vulgar, or profane marks only. Justice Breyer fell along the same lines as the Chief Justice, although his narrowing approach would consider whether the restriction “works speech-based harm that is out of proportion to its justifications.” Justice Sotomayor, joined by Justice Breyer, argued that there would be “unfortunate results” from the decision, predicting a “rush” to register “the most vulgar, profane, or obscene words and images imaginable,” when the bar on “scandalous” marks could be used more narrowly to save the restriction. A link to the opinion is here.