In just a few months, the landscape for registering scandalous, immoral and disparaging mark bars has been entirely changed.
The federal law controlling trademarks is called the Lanham Act, found at 15 USC § 1051 et seq. Earlier this year, in Matal v. Tam, 137 S. Ct. 1744 (2017), the United States Supreme Court held that Section 2(a) of the Lanham Act’ s bar on the registration of disparaging marks (in this case the name “Slants” for a band) was an unconstitutional restriction on free speech. Now, on December 15, 2017, the Court of Appeals for the Federal Circuit (which handles appeals from the Trademark Trial and Appeal Board) held that although the mark “FUCT”, used for a clothing brand, comprised immoral or scandalous matter, it was still federally registrable because Lanham Act Section 2(a)’s bar on registering such marks is an unconstitutional restriction of free speech, thereby violating the First Amendment.
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