The U.S. Supreme Court has decided that a ban onĀ trademarks for any names or logos with “immoral” or “scandalous” images is unconstitutional.
In a divided decision Monday, the high court ruled that vulgar and lewd product names must be offered trademark protection, striking down a federal law whichĀ banned registering āimmoralā and āscandalousā trademarks because it violated the First Amendment.
#SCOTUS rules that federal ban on registration of āimmoralā or āscandalousā trademarks violates the First Amendment, in challenge brought by designer who wanted to register the trademark for his FUCT clothing brand
ā SCOTUSblog (@SCOTUSblog) June 24, 2019
The 6-3 ruling inĀ Iancu v. Brunetti held thatĀ the Lanham Act violated the constitutional rights of Los Angeles artist Erik Brunetti forĀ his clothing brand “FUCT.” Registration for the name of his clothing line was denied by an appeals board which found that it wasĀ “highly offensive” and “vulgar.”
I haven’t been to that many oral arguments at SCOTUS, but I doubt any will ever top Iancu v. Brunetti (No. 18-302; “FUCT” mark user wins of First Amendment grounds) in terms of sheer awkwardness. The transcript: https://t.co/6OUGIoiDtt
ā Jennifer Bennett (@jbennettDC) June 24, 2019
āThe most fundamental principle of free speech law is that the government canāt penalize or disfavor or discriminate against expression based on the ideas or viewpoints if conveys,ā Justice Elena KaganĀ wrote in the court’s opinion.Ā āThe ban on āimmoralā and āscandalousā trademarks does just that.ā
But Chief Justice John Roberts partially dissented from the court decision, arguing that āstanding alone, the term āscandalousā need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expressionāmarks that are obscene, vulgar, or profane.ā
His view, along withĀ Justice Stephen G. Breyer andĀ Justice Sonia Sotomayor held that the high court’s opinion went too far.
āThe courtās decision today will beget unfortunate results,” Sotomayor argued. “The government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.ā
J. Roberts, in concurring & dissenting, Breyer, & Sotomayor also recognize, as S says, the government has a “reasonable interest” in not giving “ancillary support” to what is vulgar, profane, etc. All turns on definitions, categories & analogies–some to schools & children. 9/9
ā Neil Dhingra (@NDhingra4) June 24, 2019
The law “disfavors certain ideas,” Kagan wrote, referring to Section 2a of the Lanham Act which excludes “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
Kagan cited examples of trademarks related to drug use that had been approved and denied in the opinion on the case which drew many legal briefs.
Scandalous speech is valuable to society and thereās no way, consistent with the First Amendment, for a government office to be trusted to decide whatās āscandalous.ā Read Cato’s legal brief in Iancu v. Brunetti here…https://t.co/4y9UhbJrqz #CatoSCOTUS pic.twitter.com/FWHK5BnIzS
ā Cato Press (@CatoPress) June 24, 2019
“The statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation,” Kagan wrote in the opinion, joined byĀ Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.
Alito noted in a concurring opinion that the lawĀ discriminated based on viewpoint, thereby violating the First Amendment.
“Viewpoint discrimination is poison to a free society,” he wrote, urging the court to “remain firm” on the issue, during “a time when free speech is under attack.”
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Frieda@bizpacreview.com
Originally from New York, Powers graduated from New York University and eventually made her way to sunny South Florida where she has been writing for the BizPacReview team since 2015.
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