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Supreme Court revisits USPTO's ban on vulgar trademarks

The Supreme Court recently announced that it would examine whether the U.S. Patent and Trademark Office (USPTO) can refuse to register immoral or scandalous trademarks. There is currently a 113-year-old statutory provision in place that supports this stance. However, the clothing line Fuct has sought trademark protection of its name since 2012.

The rejection by the USPTO is based on Section 2(a) of the Lanham Act, which prohibits "immoral, deceptive or scandalous manner" of trademarks. The clothing line is also known for using explicit sexual imagery and been accused of objectifying women in its marketing and advertising. Generally speaking, the spirit of this act is that the government does not protect or promote the use of vulgar terms and graphic sexual images through trademark registration.

Iancu v. Brunetti

According to news reports, both the U.S. government and designer Erik Brunetti asked the court to examine the case (Iancu v. Brunetti) as it relates to freedom of speech. This follows Matal v. Tam from 18 months ago where the justices unanimously ruling in favor of the Asian electro-dance band The Slants. This latest case gives the court a chance to refine the previous ruling in favor of free speech superseding the Lanham Act.

USPTO's choices are subjective

Approved examples of vulgar F-word-based trademarks include WTF, FCUK and FWORD. There are also various iterations of other off color words that have been trademarked. A lawyer for Brunetti accuses the government of selectively approving and refusing applications instead of having a content neutral rule. He added in a recent statement, "Raising babies is sweet, making babies is disgusting. Kissing is fine, sex is dirty. Feminism is good, misogyny is bad. The word PENIS is allowed, an outline of a penis is not."

Individuals and businesses facing issues involving potentially offensive subject matter and the Lanham Act would be wise to consult attorneys with trademark experience. They can provide legal guidance and protection on trademarks particularly if there is the potential for a denial. 

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