Events

The speaker will discuss the U.S. Supreme Court’s recent decision in Iancu v. Brunetti, where the Court held that the federal trademark law banning registration of immoral and scandalous marks is a viewpoint-discriminatory regulation of expression that violates the First Amendment. This conclusion was not surprising given the fact that the Court held in 2017 in Matal v. Tam that a similar law denying registration to potentially disparaging marks was an unconstitutional regulation of the viewpoint of expression. While some commentators believe that Tam and Brunetti require the U.S. Patent and Trademark Office to register expression that is hateful, profane, vulgar, or otherwise offensive, trademark applicants still need to prove that their marks are distinctive and function as trademarks that identify a single source of goods or services. Thus, such marks may be refused registration on lack of distinctiveness or failure to function grounds. Moreover, the Justices suggested that Congress could draft a more narrow provision that would survive First Amendment scrutiny, such as a law banning registration of expression that is obscene, vulgar, or profane.