In articles published by IPWatchdog and IPPro, Bass, Berry & Sims attorney Brian Iverson provided commentary on the U.S. Supreme Court’s decision in Iancu v. Brunetti, which struck down the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” trademarks as unconstitutional under the Free Speech Clause of the First Amendment.
According to Brian, the Court generated five separate opinions. “[W]ith so many different analyses, the Court did not provide the clear guidance many had hoped for concerning the appropriate level of constitutional scrutiny for trademark statutes,” he explained.
The Brunetti decision follows the Court’s 2017 ruling in Matal v. Tam, which struck down the Lanham Act’s disparagement clause. “In many ways, Brunetti is a simple extension of Tam. Justice Kagan’s majority opinion has little difficulty concluding that the ‘immoral or scandalous’ clause in the Lanham Act is viewpoint discriminatory, and therefore, unconstitutional under Tam. Unfortunately, the majority did not take the opportunity to answer important questions left open by Tam, such as whether trademark registration should be considered a ‘government benefit’ or commercial speech,” Brian noted.
“Although the analyses vary widely, it appears that most (if not all) of the justices might uphold a different viewpoint-neutral statute allowing refusal of obscene, vulgar, or profane marks. Congress is now left to decide whether, and how best, to replace the statutes held unconstitutional in Tam and Brunetti. For now, Brunetti is a win for the increasing number of brands that use shock value as part of their marketing.”
The full articles are available in the links below:
- “Lawyers Offer Mixed Reactions to Iancu v. Brunetti Ruling,” IPPro (June 27, 2019)
- “After Brunetti: The Trademark Bar Reacts to Fractured Decision,” IPWatchdog (June 25, 2019)
For additional commentary about the Court’s decision in Brunetti, read our analysis in “U.S. Supreme Court Strikes Down Ban on Registering Immoral and Scandalous Trademarks.”