Trademark News & Screw-ups Bar on Registering 'Immoral or Scandalous' Trademarks Violates First Amendment

This is the next, and much-awaited, logical step after the U.S. Supreme Court decided the Slants case. In fact, this is exactly what I wrote in our comments about that case: "[The] question is whether the decision of the Supreme Court would also do away with prohibition on registration of "immoral or scandalous matter"? The Slants case dealt with "matter that may disparage... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The Federal Court whose decision the Supreme Court affirmed found that "the disparagement proscription of [§1052(a) of the Trademarks Act] is unconstitutional. However, there are other proscriptions in §1052(a) of the Trademarks Act, namely a proscription against registration of immoral, deceptive, or scandalous matter. USPTO routinely denies registration of swear words as trademarks. In theory, the reasoning behind "scandalous and immoral" prescription is exactly the same, the government making a value judgement about the merits of the message, which was just found unconstitutional. On the other hand, the courts' decisions only deals with a very narrow (although hugely important) provision. Looks like the decision of the Supreme Court should open the door to registration of a whole bunch of four-letter-worded trademarks. The real question is whether USPTO will require someone to try their case in court again." Well, the Federal court appears to have dealt with this issue. The question now is whether USPTO will change its internal procedures to reflect that decision.

The video below features Andrei Mincov's commentary of this article.



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