On June 13, 2024, the Supreme Court held that the Lanham Act’s prohibition on registering trademarks utilizing another person's name without consent was constitutional. In Vidal v. Elster 602 U. S. ____ (2024), the Supreme...more
Does the Lanham Act’s restriction on registration of trademarks that include an individual’s name without the consent of such individual violate the Free Speech Clause of the First Amendment, even when the mark expresses...more
The intersection of free speech and private business branding is once again in front of the Supreme Court of the United States. On June 5th, the Supreme Court decided to hear Vidal v. Elster, Case 22-704, an appeal from the...more
USPTO Director Kathi Vidal recently petitioned the Supreme Court to review a Federal Circuit decision in In re Elster. There, the Federal Circuit held the USPTO unconstitutionally applied Lanham Act Section 2(c) (15 U.S.C. §...more
Revisiting jurisprudence touching on the Lanham Act and the First Amendment from the Supreme Court’s decisions in Matal v. Tam and Iancu v. Brunetti, the US Court of Appeals for the Federal Circuit held that applying Sec....more
At a Glance - Even though the Supreme Court has paved the way for brands to register trademarks that may be considered disparaging, immoral, or scandalous, brand owners are reversing themselves and voluntarily changing....more
The last year has seen urgent discussions concerning racism, discrimination, police violence, inequality, and social justice come to the forefront of life in the United States. Corporate America – and its brands – responded...more
On June 24, 2019, the U.S. Supreme Court, in Iancu v. Brunetti, struck down the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks. Justice Kagan wrote for the 6-3 majority, holding that the...more
What constitutes a “scandalous” trademark? The United States Patent and Trademark Office (USPTO) has been grappling with this question since the enactment of the 1905 Trademark Act, later codified in the 1946 Lanham...more
“FUCT.” You can pronounce it as four letters, one after the other. Or you can pronounce it like Justice Kagan as the “past participle form of a well-known word of profanity.” Either way, the word can be registered as a...more
In a decision that is likely to trigger a rush to register trademarks that may be seen as obscene, vulgar, or profane, the U.S. Supreme Court recently determined, in a 6-3 opinion authored by Justice Elena Kagan, that a...more
On June 24, 2019 the U.S. Supreme Court issued an opinion in Iancu v. Brunetti, No. 18-302, finding that the Lanham Act prohibition against registration of scandalous or immoral trademarks violates the First Amendment of the...more
Suppose that you want to register a trademark that identifies a source of goods or services for your business. What if the trademark is immoral or scandalous? Should you register your scandalous trademark with the U.S....more
Earlier this week, the Supreme Court of the United States heard oral argument in Iancu v. Brunetti regarding the constitutionality of the portion of Lanham Act, Section 2(a) (15 U.S.C. § 1052(a)) that prohibits the United...more
On April 15, 2019, the Supreme Court will hear arguments on whether dirty words and vulgar terms may be registrable as trademarks – and if so, what is the test? Section 2(a) of the Trademark Act currently provides that the...more
The constitutionality of yet another portion of Section 2(a) of the Lanham Act will soon be determined. Following in the footsteps of the blockbuster decision in Matal v. Tam, 137 S. Ct. 1744 (2017) (“Tam”), the U.S. Supreme...more
The Supreme Court of the United States granted the US Patent and Trademark Office’s (PTO’s) request that it address whether the prohibition of federal trademark protection for “immoral” or “scandalous” marks is invalid under...more
Much of the attention on the U.S. Supreme Court in the 2018-19 term has concerned its composition or its handling of cases involving some of the signature initiatives of President Donald Trump’s administration. Less noticed...more
On Jan. 4, 2019, the U.S. Supreme Court agreed to review whether the 113-year-old ban on registration of “immoral” or “scandalous” trademarks violates the First Amendment’s guarantee of free speech. The case involves Erik...more
On Friday, the Supreme Court of the United States agreed to hear a case that will decide whether the federal ban on trademark protection for “scandalous” material is unconstitutional. In re Brunetti follows the U.S. Patent...more
This blog has followed the evolving judicial views concerning disparaging trademarks, culminating in the Supreme Court’s decision in in Matal v. Tam, 137 S. Ct. 1744 (June 19, 2017)....more
On Friday, while some of us may have been muttering a few bad words as we slogged through our post-holiday inboxes, the Supreme Court was toying with a naughty word of its own: FUCT. That’s right. Late last week the Court...more
In light of ongoing litigation over an applicant’s effort to register the mark FUCT for wearing apparel, the USPTO recently issued an Examination Guide concerning the review of trademark applications under Section 2(a) of the...more
Last July, in an article titled “Free speech legal battle changes law on disparaging trademarks,” we reported that the U.S. Supreme Court ruled in Matal v. Tam that the Lanham Act’s prohibition of disparaging marks was an...more
On June 19, 2017, the U.S. Supreme Court struck down the disparagement clause of the Lanham Act (15 U.S.C. § 1051 et seq.) in Matal v. Tam (137 S. Ct. 1744), holding that it violates the First Amendment’s free speech clause. ...more