Supreme Court Allows “Immoral” or “Scandalous” Trademarks

wills trusts estate planningBack in January, I wrote a blog post about the US Supreme Court agreeing to hear a case concerning “immoral” or “scandalous” trademarks. The case concerned the attempt by Mark Brunetti to trademark the word FUCT. This summer, the Supreme Court ruled in a 6-3 decision that the law denying such marks violates the First Amendment because “it disfavors certain ideas.” In its decision, the Court cited certain marks that were allowed, such as a game called “Praise the Lord,” while other marks, such as “Bong Hits for Jesus” were denied.

The Court left open the possibility that Congress might narrow the law so that certain terms are still not approved. But absent Congress doing so, it could become a free-for-all at the United States Patent and Trademark Office concerning what marks are submitted and approved with terms that were formerly denied.

And, in case you were wondering, the Justices apparently took great care during the hearing to “not to use the FUCT name out loud.”

Contact me today if you want to trademark your brand!

This blog post is for educational purposes only.  It does not create an attorney-client relationship.  Seek an attorney’s advice for your specific situation. 

Immoral or Scandalous Trademarks

Did you know that not every trademark is accepted for registration? For example, the United States Patent and Trademark Office (USPTO) will not register a mark that it considers “immoral” or “scandalous.” Of course, times have changed since that statutory provision took effect more than one hundred years ago. What do we do now about words that might have offended then but have become practically common vernacular now?

Last week, the US Supreme Court agreed to hear oral arguments concerning the issue of the mark FUCT, which designer Mark Brunetti has been trying to register for more than a decade. After being denied the mark, he received a favorable lower court ruling. But both he and the USPTO asked the Supreme Court to consider the case. Oral arguments will most likely take place this spring, and the decision will be issued several months after that. I will follow up on the case when the decision is handed down.

In an interesting side note, the Court generally does not like profanity at oral argument. It is unknown whether counsel for either side will say the name of the mark or simply allude to it during argument.