Hi, and welcome back to Legal Geek. This week, we review this week's decision of the Supreme Court striking down the U.S. law banning registration of offensive trademarks.
Just about two months ago, this segment covered the oral arguments in this case, in which the Supreme Court considered whether the ban on trademark registrations for so called immoral and scandalous marks was constitutional. This appeared to be a direct follow up to the 2017 decision in which a similar ban on disparaging marks was stricken as unconstitutional by the Court. The court appeared to be struggling to distinguish these two types of bans from one another during oral arguments, and that indeed played out in the final written decision this week.
Justice Kagan wrote for a 6-3 majority and started with a blunt assessment of this case and how it relates to the 2017 disparaging marks case. She stated that the Court holds that this provision banning immoral and scandalous marks infringes the First Amendment free speech rights for the same reason as the disparaging marks ban, more specifically, that it is a law disfavoring ideas that offend, which discriminates based on viewpoint, and that type of speech restriction is nearly impossible to uphold under First Amendment law. So as many legal scholars expected when the disparaging ban went down two years ago, the ban on immoral and scandalous marks fell quickly behind that.
The particular challenger to the law is Erik Brunetti, who owns a streetwear brand called F-U-C-T. So he will benefit much like the band The Slants and the Redskins football team did when the disparaging ban was stricken as unconstitutional two years ago, as he will be able to proceed to register his trademark at the U.S. Trademark Office. But this decision also signaled that the floodgates may not be open to all offensive marks forever.
To this end, the dissenting justices made it clear that they favored a more narrow reading of the law to make the scandalous part of the trademark ban viewpoint neutral and constitutional. The U.S. government had argued that this scandalous ban could be maintained if it was narrowly applied only to marks that are obscene, vulgar, or profane in their mode of expression, and Justice Sotomayor indicated that such a narrower ban would likely be constitutional if presented that way.
The majority opinion did not strongly dispute this point of the dissent, but simply made the points that the law is written broadly now and has to be evaluated in that sense, making it clearly unconstitutional. Justice Kagan wrote that the majority's decision says nothing at all about a future law limited to banning merely a smaller set of problematic marks like lewd, sexually explicit, and profane marks. Justice Alito in a concurring opinion specifically observed that Congress could now write a more carefully focused narrow law that precludes registration of marks containing vulgar terms that play no real part in the expression of ideas.
So while it's clear the Lanham Act's prior broad bans on disparaging, immoral, and scandalous trademarks is finally dead, it will be interesting to see if Congress picks up the issue to rewrite the scandalous ban to be narrower and perhaps OK under the constitution's First Amendment protections. The Court has certainly opened that door in this decision.
The Bottom Line is: while this Court decision is a win for consistency in the laws and a win for those who seek to register marks deemed more risqué or scandalous, the door may not remain open for truly lewd, obscene, and profane marks if Congress responds to the Court's seeming invitation to present a law with a more narrowly tailored ban. So long term, this may only be a temporary victory for marks like Erik Brunetti's F-U-C-T clothing brand.
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