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Warning: This forthcoming Supreme Court hearing may contain strong language unsuitable for children.
On Friday, the high court agreed to review a case — Iancu v Brunetti — that focuses on whether the government’s prohibition on federal registration of “immoral” or “scandalous” trademarks is facially invalid under the free speech clause of the First Amendment.
Back in December 2017, the United States Court of Appeals for the Federal Circuit held that the Lanham Act’s ban on immoral or scandalous matter was unconstitutional. The case concerns Erik Brunetti, who founded the clothing line “FUCT,” but was refused registration by an examiner on the name of his clothing brand.
Federal Circuit Judge Kimberly A. Moore wrote that the trademark examiner’s refusal couldn’t survive constitutional scrutiny.
“There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law,” stated the opinion. “No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case.”
Brunetti’s success probably wouldn’t have happened but for an earlier Supreme Court decision in 2017.
Simon Tam, the Asian-American frontman of The Slants, convinced the justices then that a trademark examiner violated his free speech rights when refusing to allow him to register his rock band’s name. That case looked at a separate provision of the Lanham Act — one that looked down on the registration of disparaging marks.
The Tam case made the government’s position on scandalous matter a much tougher one, but maybe not impossible.
The government argues that trademark registration should be seen as a government subsidy for marks it wishes to promote rather than a restriction on marks that are excluded. In fact, the government takes the position that the Lanham Act provision in question doesn’t really restrict speech at all.
“Trademark rights are created not by federal law, but by use of a mark to identify goods and services in commerce,” wrote government lawyers in the petition for cert. “Even without federal registration, respondent may use vulgar terms or symbols to identify his goods in commerce, and he may seek to enforce his chosen mark in both state and federal courts against others whom he believes have misused it or have misappropriated any goodwill associated with it.”
In an effort to blunt the impact of the Tam decision, the government focuses on how the justices at the time rendered two opinions with half of the eight participating justices rejecting the subsidy framework and the other half not taking a position. The two groups both agreed that the disparagement provision discriminated based on viewpoint and couldn’t be sustained, though there was disagreement on the reason why not. In any event, the government now comes back to the Supreme Court in Iancu v. Brunetti with some emphasis or at least hope that the Tam decision amounted to a rejection on narrow grounds, and that other trademark restrictions — namely, stuff that’s fucking immoral — may survive.
If not, the Solicitor General is free to curse, too.
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