The US Supreme Court to review a new front in the battle over free speech and will decide whether trademark protection can be refused to brands the federal government finds vulgar or lewd.
The case involves a decision of the U.S. Patent and Trademark Office to deny trademark registration to a clothing line called FUCT.
The U.S. Court of Appeals for the Federal Circuit struck down the century-old ban on protecting “scandalous” and “immoral” trademarks as a First Amendment violation, and the Department of Justice wants the Supreme Court to reverse the decision.
But the Supreme Court in 2017 ruled unanimously that another part of the trademark law — one that banned registering trademarks that were considered “disparaging”— violated the First Amendment.
That ruling, Matal v. Tam, came in a case that involved an Asian American rock group called the Slants, which tried to register the band’s name in 2011. The band was turned down by the USPTO because officials said it was likely to offend Asian Americans.
The USPTO defines “scandalous” marks as those that a substantial composite of the general public would find “‘shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out for condemnation,” according to the government’s brief.
The case,Iancu v. Brunetti , will probably be heard at the Supreme Court in April.
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