Detroit Trademark Attorney: Is "Scandalous" in the Eye of the USPTO?
According to Bloomberg News, the US Supreme Court will decide whether the Federal government can refuse access to trademark registration because it is deemed to be “scandalous.” Which is to say, lewd, sexually explicit, or generally vulgar.
For nearly a century, one of the preliminary criteria for a proposed word or design-mark’s registrability in the Federal database watch-dogged by the US Patent and Trademark Office (USPTO) has been that the proposed trademark cannot be offensive to the general public.
It is the point-of-view of the US Congress that the USPTO should not be seen to be endorsing offensive images or terms, Bloomberg quotes US Solicitor Noel Francisco as arguing.
Detroit Trademark Attorneys: The Supreme Court’s 2017 “Scandalous” Trademark Ruling
However, in 2017, a trademark for the rock band The Slants was allowed by the US Supreme Court, despite the USPTO’s argument that the band’s name was potentially disparaging of an ethnic group (which, in fact, included all of the band’s members, who were utilizing the term as a form of re-definition and personal empowerment).
The Supreme Court, in that case, rested its opinion on First Amendment protections, in particular the notion that speech may not be banned on the ground that it expresses “offensive” ideas.
Detroit Trademark Attorneys: The Current “Scandalous” Trademark Argument
This new case, Iancu v. Brunetti, which should be heard by the end of June, likewise will rule on whether Section 2(a) of The Lanham Act (“the Trademark Act”) violates the First Amendment’s free speech protection in banning “scandalous” trademarks. Brunetti, in this case, is also arguing that Section 2(a) may be unconstitutionally “vague” under both the First and Fifth Amendments of the US Constitution.
Brunetti argues that all “scandalous” clause trademark refusals are “based upon viewpoint” and are being selectively enforced by the USPTO and not enforced in a “content-neutral” manner that doesn’t run afoul of Constitutional protections.
The Brief filed by Brunetti, in fact, argues that the government’s case rests upon arguments already rejected by the US Supreme Court in The Slants’ case.
With a new Justice on the US Supreme Court, however, there is not necessarily any guarantee that a similar ruling will follow here, but it is certainly worth watching.
This is, in general, very good news for Detroit, Michigan and other rock and punk bands in particular who might wish to register their band-names with the USPTO without fear of an unfavorable “judgment call” by an examining USPTO attorney.
The USPTO has already, per Bloomberg, suspended consideration of registration applications by bands such as Pussy Riot and Thunderpussy pending resolution of this action.
Detroit Trademark Attorneys: Trademark Registration Bottom-Line
If you are seeking to register for trademark protection, in particular for your band’s name or logo design, regardless of whether you fear it might be considered offensive by examining authorities, Attorney John Hilla would be happy to speak to you about your particular mark at (866) 674-2317 or Contact Us Here.