December 20, 2017
Intellectual Property Update: Federal Court Allows Registration of “Scandalous” “FUCT” Trademark
Following the Supreme Court’s landmark ruling last year that the Lanham Act’s statutory bar to registration of “disparaging” trademarks ran afoul of the First Amendment, the United States Court of Appeals for the Federal Circuit struck down a companion portion of the federal trademark law that precluded registration of “immoral” or “scandalous” marks. The Federal Circuit found that the mark at issue – Erik Brunetti’s “FUCT” apparel mark – was “vulgar,” rejecting the contention that the mark was an acronym of “Friends You Can’t Trust.” But, the appellate panel struck down the Lanham Act’s ban on “scandalous” marks as impermissible content-based discrimination on First Amendment free speech rights for which the government offered “no substantial government interest.” A concurring opinion by Circuit Judge Timothy Dyk argued that the panel should have narrowed the reach of the law and upheld a restriction against “obscene” marks, which he contended would be a permissible government restriction. Absent some further action from the full Federal Circuit, Congress, or the Supreme Court, however, the PTO must allow registration of even “obscene” marks.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you need assistance with a particular situation, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.