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Supreme Court Rules 1st Amendment Allows FUCT as a Trademark

Following its trend of finding that the First Amendment allows free speech even in branding, the Supreme Court ruled last week that the term FUCT could be a registered trademark. This decision, Iancu v. Brunetti, found unconstitutional part of the rules at the US Patent and Trademark Office that denied registration for “immoral ... or scandalous” words. This is a similar provision to the “disparaging” prohibition that was found unconstitutional two years ago when the Supreme Court allowed registration for SLANTS for an Asian-American band, which led to the Washington Redskins being allowed to register REDSKINS. The FUCT opinion traced a history of the PTO allowing some marks and denying others based on the PTO’s view of whether the idea behind the mark aligned with, or was hostile to, conventional moral standards. The First Amendment prohibits the PTO from being viewpoint-biased and condoning one viewpoint while condemning others in granting or denying trademark registrations. This gives more latitude and protection for brand owners who want to be more edgy, in that they can now gain registration as a tool to stop infringers on their risqué trademarks. However, an immoral or scandalous trademark should still be marketable to the intended consumers. Also, the opinion left open the ability for Congress to rewrite the statute to prohibit registering vulgar marks, if the statute is neutral as to societal viewpoints.

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Date

07.03.19

Type

Publications

Authors

Himmelrich, Ned T.

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