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High Court Strikes Down Patent Office’s Standard of ‘Immoral’

June 25, 2019Media Mention
Los Angeles Daily Journal

The U.S. Supreme Court affirmed Monday that a Los Angeles-based clothing designer can register his apparel line FUCT with the U.S. Patent and Trademark Office, striking down a federal bank on trademarks deemed “immoral” and “scandalous.”

Greenberg Glusker Partner Douglas Mirell told the Daily Journal, “Given the U.S. Supreme Court’s 2017 ruling in the “Slants” case (Matal v. Tam) that the “disparagement” provision of the federal trademark act is unconstitutional, it comes as no surprise that the Court has now likewise found that prohibiting the registration of “immoral or scandalous” trademarks also violates the First Amendment.  While this decision may, at least initially, increase the use of crude or vulgar trademarks, it is also possible that mainstream brand owners may be concerned that the proliferation of such marks will offend significant segments of their market.  Moreover, once the taboo against registering such trademarks is removed, lesser known brand owners may no longer view such marks as sufficiently edgy. 

Finally, it is not at all clear that any attempt by Congress to rewrite the law to replace the term “scandalous” with the words “obscene, vulgar or profane” – as Justice Sotomayor suggested in her partial concurrence and dissent – would survive constitutional scrutiny by a majority of the Supreme Court.”