Supreme Court strikes down provision on ‘immoral’ trademarks

The Supreme Court on Monday struck down a trademark provision blocking “immoral or scandalous” trademarks.

The justices ruled in favor of a company called “FUCT” whose trademark was earlier found to have violated the provision.

The court found that the statute can’t stand because it “disfavors certain ideas.”

{mosads}Justices Elena Kagan, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito and Neil Gorsuch ruled in the majority.

Chief Justice John Roberts, alongside Justices Stephen Breyer and Sonia Sotomayor, partially dissented.

Erik Brunetti, had sought the trademark for his clothing brand “FUCT,” saying that it’s pronounced one letter at a time. But the U.S. Patent and Trademark Office rejected his request, finding that Brunetti’s trademark was a “total vulgar” and “therefore unregisterable.”

In the majority opinion, Kagan wrote that the justices found that the patent office had not been applying the measure blocking the so-called “scandalous” or “immoral” trademarks from a neutral viewpoint. The opinion cited examples in which the office had blocked trademarks that promoted drug use but approving others that spoke out against drugs.

And the justices rejected the government’s proposal that they consider the law be limited to just “vulgar” trademarks.

The law “covers the universe of immoral or scandalous….material,” Kagan wrote. “Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead of from viewpoint.”

She said that asking the court to reinterpret the law in such a way would effectively force the justices to establish a new law.

“In any event, the ‘immoral or scandalous’ bar is 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,” Kagan wrote. “It therefore violates the First Amendment.”

Alito emphasized that point in a concurring opinion, writing that Monday’s ruling “does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.”

“But we are not legislators and cannot substitute a new statute for the one now in force,” Alito wrote.

In a separate opinion, Roberts wrote that he believes that “immoral” aspect of the law should be struck down, but that it’s possible to do a more narrow reading of the ban on “scandalous” trademarks.

“Standing alone, the term ‘scandalous’ need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expression – marks that are obscene, vulgar, or profane,” he wrote.

And the chief justice said that he believes that the government can reject obscene, vulgar or profane trademarks without violating the First Amendment – a belief that Breyer addressed in his own dissenting opinion.

“How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much,” Breyer wrote.

Sotomayor also said that she would uphold the government’s interpretation of the ban on “scandalous” trademarks.

“Adopting a narrow construction for the word ‘scandalous’ – interpreting it to regulate only obscenity, vulgarity, and profanity – would save it from unconstitutionality,” the justice wrote.

And Sotomayor warned that the court’s ruling Monday “will beget unfortunate results,” arguing that the trademark office “will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.”

–This report was updated at 11:38 a.m.