Bass, Berry & Sims attorney Brian Iverson provided insight for an IPWatchdog article on the U.S. Supreme Court’s January 4 announcement that it will hear Iancu v. Brunetti, a case that questions whether the immoral and scandalous clause of Section 2(a) of the Lanham Act violates the First Amendment’s right to free speech. At issue is the USPTO’s denial of Erik Brunetti’s 2011 trademark application for his FUCT clothing line – a trademark that was denied because it was considered scandalous under Section 1052(a) of the Lanham Act. The government argued that the Lanham Act does not restrict speech because the inability to register a mark does not prevent the owner from using the mark.
However, as Brian states, “The government’s arguments that lack of registration doesn’t preclude use begs the question, ‘how do you protect these brands if you can use the marks [but registration is not available]?'” Although the Supreme Court grants only a small fraction of cert petitions that are filed each year, Brian was not surprised the Supreme Court granted the petition here, “in part because, when you read through the petitions, even Brunetti agreed that the Supreme Court should hear the case.”
The full article, “Supreme Court to Hear Second Case on Constitutionality of Lanham Act’s Scandalous and Disparaging Marks Provision,” was published by IPWatchdog on January 9, 2019, and is available online.