Justices agree, mostly, that ban on ‘immoral,’ ‘scandalous’ trademarks violates free speech

July 3, 2019Media Mention
Westlaw Journal

All nine U.S. Supreme Court justices have agreed that denying federal registration to “immoral” trademarks violates the First Amendment, but only six voted to completely strike down the law that bars registration of both immoral and “scandalous” marks.

Douglas Mirell of Greenberg Glusker, also not involved in the case, had a different view. “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’ would survive constitutional scrutiny by a majority of the Supreme Court,” he said.

As for the effect of the decision, Mirell said “once the taboo against registering such trademarks is removed, lesser known brand owners may no longer view such marks as sufficiently edgy.”