Supreme Court Hears Argument on Constitutionality of Scandalous Trademark Ban

Written April 17, 2019

The Supreme Court on April 15, 2019, heard oral argument in the Brunetti case on whether the statutory ban on registering “immoral ... or scandalous” trademarks violates the First Amendment. Iancu v. Brunetti, U.S., No. 18-302, oral argument 4/15/2019.

The case over the PTO’s refusal to register the mark "FUCT" follows the Supreme Court's 2017 decision in Tam striking down a ban on registering disparaging marks (in that case, "the Slants") because “[g]iving offense is a viewpoint” and may not be the basis for denying a government benefit. However, the Justices at the Brunetti oral argument showed some sympathy for the government's claim to a public interest in keeping offensive marks off the trademark register. Unlike the mark in Tam, Justice Alito observed, Brunetti’s mark does not express a "viewpoint." The Court puzzled over how to tell when a viewpoint is and is not expressed.