When is a Trademark So "Scandalous" It Cannot Be Registered?
An applicant cannot be denied a trademark registration on the grounds that the trademark is scandalous. Doing so would violate the applicant’s First Amendment rights.
Federal law previously prohibited the registration of any trademark that comprised “immoral” or “scandalous” matter. But a trademark applicant challenged that law after the United States Patent and Trademark Office refused to register the trademark of his clothing line FUCT (allegedly pronounced F-U-C-T).
The Supreme Court ruled in the applicant’s favor. In the Court’s view, terms like “scandalous” and “immoral” distinguish between two opposing sets of ideas: allowing registration of marks aligned with conventional moral standards, but denying registration of marks hostile to them.
Limiting the registration of trademarks in such a way discriminates on the basis of viewpoint, which the First Amendment does not allow.
The Supreme Court left open the possibility, however, that Congress could validly pass a more tailored law prohibiting registration of vulgar trademarks that play no real part in the expression of ideas.
But it remains to be seen whether Congress will enact such a law, and whether the Supreme Court will uphold it under the First Amendment.
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