April 18, 2019

Speech and Trademarks on Trial

Justices consider constitutionality of a law prohibiting “scandalous” and “immoral” trademarks.

On Monday, the Supreme Court heard arguments in Iancu v. Brunetti, a case concerned with free-speech rights in relation to trade marking. At issue “is the 1946 Lanham Act’s prohibition on trademarks deemed ‘scandalous’ and ‘immoral,’” The Wall Street Journal explained. “The U.S. Patent and Trademark Office in 2014 denied a trademark for Erik Brunetti’s streetwear line FUCT — short for Friends U Can’t Trust — after concluding that the brand ‘objectifies women and offers degrading examples of extreme misogyny’ and is ‘lacking in taste.’”

Brunetti’s argument is that the Lanham Act should be struck down as unconstitutional because its prohibition against “scandalous” and “immoral” trademarks is an affront to Americans’ First Amendment liberties.

Malcolm Stewart, the lawyer representing the government, argued that the refusal by the government to offer trademark protection was not a restriction of free speech; rather it was the government simply deciding not to promote certain speech. Stewart, who refrained from saying the brand’s name, said it was “the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language.”

A point the justices made was that irrespective of whether Brunetti was denied a trademark registration, it did not prevent him from using the name to register his business. However, not having a registered trademark does make it more difficult for him to go after anyone who would seek to counterfeit his products.

Finally, both Justices Ruth Bader Ginsburg and Neil Gorsuch noted the apparent inconsistent application of the Lanham Act, given that the U.S. Patent and Trademark Office granted registration to “PHUKIT.” Gorsuch stated, “There are shocking numbers of ones granted and ones refused” that “do look remarkably similar.” He said that it was as if the cases were decided via a “flip of a coin.”

Based upon the inconstant manner in which the Lanham Act has been applied, it appears likely that the justices may indeed throw out the rather dubious “scandalous” and “immoral” prohibition.

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