Supreme Court Rules that “Immoral,” as Well as “Scandalous” Trademarks May be Registered

By limiting the discretion of the USPTO, the Supreme Court has broadened the potential marks that can be federally registered.

The United States Supreme Court has ruled that the federal trademark law’s ban on registering “immoral” and “scandalous” marks is unconstitutional. The case involved the USPTO’s refusal to register the mark “FUCT,” which functions as the brand name of a line of clothing. The USPTO said it could not register the mark because of the Lanham Act’s ban on registering “immoral” or “scandalous” marks. Because FUCT is phonetically similar to the expletive “fucked,” which is a well-established as a scandalous word, the USPTO reasoned that the Lanham Act would be violated by registering this mark. The clothing company appealed this decision.

The Supreme Court disagreed, and held that the Lanham Act violates the First Amendment’s right of free speech, because it discriminates on the basis of viewpoint (who’s to say what’s immoral?). (Iancu v. Brunetti, _ U.S.___, (2019).) This case is the natural extension of the Court’s 2017 decision in Matal v. Tom, 137 S. Ct. 1744 (2017), which involved a musical group’s attempt to register their name, “SLANTS.” That case held that the Lanham Act’s ban on registering disparaging marks was unconstitutional and that the mark SLANTS could be registered. In short, the USPTO may no longer refuse to register marks that are immoral, scandalous, or disparaging.