In a major win for free speech advocates, on Monday, June 24, 2019, the United States Supreme Court ruled that a federal statutory ban on the trademarking of words and symbols that are “immoral” or “scandalous” violates the First Amendment.
Erik Brunetti of Los Angeles, a fashion designer for the streetwear brand “FUCT,” brought suit after being denied registration of the mark “F-U-C-T.” Brunetti applied for registration of the mark in 2011, but an examining attorney of the United Stated Patent and Trademark Office refused registration on the grounds that the phonetically profane term was too “highly offensive” and too “vulgar.” Brunetti appealed to the Trademark Trial and Appeal Board (the “TTAB”), but to no avail, as the TTAB affirmed the registration refusal. Brunetti took his case to the Court of Appeals for the Federal Circuit and sought a facial Constitutional challenge to the Lanham Act’s ban on “immoral or scandalous” marks; the appeals court held that the ban violated the First Amendment, and the Supreme Court granted cert.
In a rare bipartisan ruling, Justice Elena Kagan wrote for the majority, and in a 6-3 decision, was joined by Ruth Bader Ginsburg, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. Justice Alito added a brief concurrence, and justices Sotomayor, Roberts, and Breyer each concurred in part and dissented in part.Continue reading