You Can Now Trademark Your Potty Mouth and "Offensive" Marks

The Supreme Court struck down a federal law barring the registration of “immoral or scandalous” trademarks as an infringement of the First Amendment. The government can no longer reject your trademark application because they deem it subjectively offensive.

FUCT can now be trademarked! Erik Brunetti took his FUCT case all the way to the Supreme Court. Brunetti named his clothing line "FUCT", hoping to convey the “revolutionary” and “proudly subversive” nature of his designs. (He claims it stands for FRIENDS U CAN’T TRUST.) But the United States Patent and Trademark Office refused to register FUCT, citing the federal bar on “immoral or scandalous” trademarks. Brunetti filed a lawsuit against the PTO, alleging that the statute constitutes viewpoint discrimination in violation of his free speech rights. It is simply impossible to determine which trademarks are “immoral or scandalous” without evaluating the ideas they express.

Holding: The Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment.

Judgment: Affirmed, 6-3, in an opinion by Justice Kagan on June 24, 2019. Justice Alito filed a concurring opinion. Chief Justice Roberts and Justice Breyer filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.

Read More here.

Read the full Supreme Court Opinion here.

So what does this mean for you? Do you have term or phrase that you wanted to trademark but you didn't file the application for fear that I will be rejected because it would be considered "vulgar"? Now you can.

But take note ... this doesn't mean that you will be able to use curse words in your marks all willy nilly. The trademark examiner now has the ability to consider the mark's context. Coger Law Firm can creatively draft your trademark application in a way that will convey the full meaning of your mark.

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Thank You! 

Karin Y. Coger, Esq.

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