Weekly IP Buzz for the week ending July 5, 2019
Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending July 5, 2019.
First Amendment Trumps Trademark Law: Supreme Court Holds FUCT Is OK
It has been well known that the federal government has long prohibited the registration of trademarks considered to be “immoral” or “scandalous.” Trademark attorneys have long advised clients to build brands or invest in names that were not edgy enough to be debatable if it came time to register them with the U.S. Trademark Office. In a recent decision, the First Amendment and scandalous trademarks were examined.
Is It Profanity or Clever Art and Free Speech?
In the case at hand, the U.S. Trademark Office rejected an artist’s application to register “FUCT” in connection with his products and merchandise. Even though the petitioner had argued that the trademark was meant to be read as four letters “F-U-C-T,” the U.S. Trademark Office deemed that the proposed trademark was scandalous, too connected to profanity in sound and would only raise such imagery in the mind of consumers upon initial viewing.
This all changed, however, earlier this week when the Supreme Court ruled that the long-standing precedent and prohibition of seemingly scandalous marks violated the First Amendment.
The First Amendment and Scandalous Trademarks
In overturning longstanding trademark law, the Supreme Court held that view pointed-based review and subsequent rejection of trademarks were unconstitutional. Because the U.S. Trademark Office used subjective reasoning when reviewing the submitted materials for trademark registration (e.g., website, imagery) and deemed them misogynistic, depraved, and violence as reasons for rejecting the trademark application on the basis of immorality or “scandalous trademarks,” the Supreme Court found that the government had engaged in analysis that is prohibited by the First Amendment.
Specifically, in the holding, the Supreme Court noted that the U.S. Trademark Office has long demonstrated considerable bias in its rejections based on immorality.
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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.
Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.