High court strikes down ‘scandalous’ part of trademark law

Legal Compliance

The Supreme Court struck down a section of federal law Monday that prevented businesses from registering trademarks seen as scandalous or immoral, handing a victory to California fashion brand FUCT.

The high court ruled that the century-old provision is an unconstitutional restriction on speech. Between 2005 and 2015, the United States Patent and Trademark Office ultimately refused about 150 trademark applications a year as a result of the provision. Those who were turned away could still use the words they were seeking to register, but they didn’t get the benefits that come with trademark registration. Going after counterfeiters was also difficult as a result.

The Trump administration had defended the provision, arguing that it encouraged trademarks that are appropriate for all audiences.

The high court’s ruling means that the people and companies behind applications that previously failed as a result of the scandalous or immoral provision can re-submit them for approval. And new trademark applications cannot be refused on the grounds they are scandalous or immoral.

Justice Elena Kagan said in reading her majority opinion that the most fundamental principle of free speech law is that the government can’t penalize or discriminate against expression based on the ideas or viewpoints they convey. She said Lanham Act’s ban on “immoral or scandalous” trademarks does just that.

In an opinion for herself and five colleagues, both conservatives and liberals, Kagan called the law’s immoral or scandalous provision “substantially overbroad.”

“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment,” she wrote.

Kagan’s opinion suggested that a narrower law covering just lewd, sexually explicit or profane trademarks might be acceptable.

The justices’ ruling was in some ways expected because of one the court made two years ago . In 2017, the justices unanimously invalidated a related provision of federal law that told officials not to register disparaging trademarks, finding that restriction violated the First Amendment. In that case, an Asian-American rock band sued after the government refused to register its band name, “The Slants,” because it was seen as offensive to Asians.

Related listings

  • Brazil's supreme court votes to make homophobia a crime

    Brazil's supreme court votes to make homophobia a crime

    Legal Compliance 06/14/2019

    Brazil's supreme court officially made homophobia and transphobia crimes similar to racism on Thursday, with the final justices casting their votes in a ruling that comes amid fears the country's far-right administration is seeking to roll back LGBT ...

  • Washington Supreme Court weighing legislative records case

    Washington Supreme Court weighing legislative records case

    Legal Compliance 06/12/2019

    Washington Supreme Court justices had pointed questions Tuesday for lawyers representing the Legislature and a media coalition who argued that lawmakers have been violating the law by not releasing emails, daily schedules and written reports of sexua...

  • Kenya's Judges Uphold Laws That Criminalize Gay Sex

    Kenya's Judges Uphold Laws That Criminalize Gay Sex

    Legal Compliance 05/26/2019

    Kenya's High Court has chosen to uphold colonial-era laws that criminalize gay sex, dashing the hopes of activists who believed the judges would overturn sections of the penal code as unconstitutional and inspire a sea change across the continent.Thr...