In an article published by IPWatchdog, Bass, Berry & Sims attorney Brian Iverson provided commentary on the U.S. Supreme Court’s hearing of Iancu v. Brunetti on Monday, April 15 – a case that will determine whether Section 1052(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” trademarks is constitutional under the Free Speech Clause of the First Amendment.
“Based on the oral argument, I would not be surprised to see multiple opinions in this case,” Brian said. “Even if all nine justices agree on the result, they seem to view the case through different lenses that might lead to different conclusions on whether the ‘immoral’ or ‘scandalous’ clause is a restriction on speech or merely a condition for government benefits, whether any speech restriction is viewpoint discriminatory, and whether the government has satisfied the appropriate level of constitutional scrutiny.”
In the arguments, Brian explains that Justices Alito and Sotomayor were skeptical of the government’s interest in protecting the public from offensive trademarks, pointing out that trademarks can be used regardless of federal registration. Additionally, Justices Sotomayor, Ginsburg, Kavanaugh and Gorsuch seemed concerned about the U.S. Patent and Trademark Office’s inconsistent application of the clause. Justice Breyer noted that certain extreme words have different physiological effects, suggesting that the government might not want to be associated with those words.
The full article, “Iancu v. Brunetti: Lawyers Weigh In On Fate of Scandalous Trademarks,” was published by IPWatchdog on April 17, 2019, and is available online. Brian previously published articles for IPWatchdog on Iancu v. Brunetti and its related case Matal v. Tam.