In June of this year, in Iancu v. Brunetti, 139 S.Ct. 2294 (2019) the Supreme Court struck down the statutory prohibition on federal registration of a so-called “scandalous” trademark — in this instance, “FUCT” – as conflicting with the First Amendment guarantee of free speech. The Court’s decision, as predicted by most observers, was consistent with its decision last year in Matal v. Tam, 137 S.Ct. 1744 (2017), in which the Court held that the similar prohibition on registering “disparaging” trademarks violated the First Amendment. Brunetti is of interest because six Justices of the Court, including Justices on both the left and right sides of the ideological spectrum, vigorously endorsed the First Amendment, brushing aside the opinions of the three remaining Justices that the court should have salvaged the prohibition by narrowing its scope to “obscene” or “lewd” trademarks. The decision could therefore be useful precedent for parties seeking to strike down in their entirety other laws or regulations offending the First Amendment. The context of this particular First Amendment dispute is trademark registration. Registration of a trademark with the United States Patent and Trademark Office (PTO) is strictly voluntary; unregistered marks are still enforceable under federal and state law. […]
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