It’s old news by now, but the Supreme Court ruled earlier this week that the immoral and scandalous  trademark ban set forth in Section 2(a) of the Lanham Act is unconstitutional under the First Amendment because it disfavors certain ideas and thus discriminates based on viewpoint.  Practically, this means that the United States Patent and Trademark Office (USPTO) can no longer refuse to register such marks.

This is the second case the Supreme Court has decided on two related provisions of Section 2(a) of the Lanham Act — the disparaging trademark ban and the immoral/scandalous trademark ban.  Almost exactly two years ago, the Supreme Court ruled in a case involving the rock band The Slants (which also impacted the Redskins NFL team, a case the Supreme Court did not hear) that the disparaging trademark ban was unconstitutional.  Mirroring that ruling, the Supreme Court has now reached the same conclusion on the immoral/scandalous trademark ban in a case involving the streetwear brand Fuct.  The USPTO, which argued in both cases in favor of maintaining the bans, hoped the Supreme Court would view the two provisions differently, but it did not (more specifically, the majority did not).

Interestingly, the justices appear to have left open an avenue for future legislation more narrowly tailored to a ban that may be upheld — such as a ban on lewd, sexually explicit, and profane marks.  Attorneys around the country are trying to predict what Congress may do in response, but nothing is clear or immediate yet.

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