Prohibiting registration of marks as ‘immoral’ or ‘scandalous’ against free speech: USSC

The United States Supreme Court recently struck down provisions in federal law prohibiting registration of trademarks on the grounds of being ‘immoral’ or ‘scandalous’ as violation of free speech rights.

“The statute, on its face, dis­tinguishes between two opposed sets of ideas: those aligned with con­ventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemna­tion. This facial viewpoint bias in the law results in viewpoint-discriminatory application”, the Court said.

Government sought to narrow the meaning of immoral and scandalous to cover just marks that are sexually explicit or profane.

The Court, however, said “The ‘immoral or scan­dalous’ bar does not draw the line at lewd, sexually explicit, or pro­fane marks. Nor does it refer only to marks whose “mode of expres­sion,” independent of viewpoint, is particularly offensive. To cut the statute off where the Government urges is not to interpret the stat­ute Congress enacted, but to fashion a new one. And once the ‘im­moral or scandalous’ bar is interpreted fairly, it must be invalidated.”

Respondent sought federal registration of the trademark FUCT. The Patent and Trademark Office denied his applica­tion under a provision of the Lanham Act that prohibits registration of trademarks that consists of or comprises immoral or scan­dalous matter.

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