Iancu v. Brunetti [SCOTUSbrief]
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Iancu v. Brunetti [SCOTUSbrief]


In the case of Iancu versus Brunetti, what’s
at issue is whether or not the Trademark Office should be required to register marks that
are immoral or scandalous, that is, marks that might offend a substantial portion of
the general population. The parties are Iancu, who’s Director of the
Patent and Trademark Office, and Mr. Brunetti, who is the founder of a clothing company that
sells high-end, modern, edgy street wear under the brand name FUCT. Mr. Brunetti, uh, tried to register as a trademark
the name of his company, FUCT, and the Trademark Office, uh, rejected his application as being,
uh, immoral or scandalous under Section 2(a) of the Lanham Act. The Lanham Act was, uh, enacted back in the,
the mid to late 1940s and it basically covers trademark law. The provision of the Lanham Act that’s at
issue in this case is Section 2(a) and specifically the immoral or scandalous clause. So the terms immoral and scandalous have generally
been interpreted as being offensive to a substantial portion or a significant portion of the general
population. So the usual uses of Section 2(a), immoral
and scandalous, are generally to deny registration of marks that are related to sex, drugs, or
religion. The motive for denying registration of marks
that are either disparaging, as in the Matal versus Tam case, or immoral or scandalous,
as in the Brunetti case, is the idea that we want to protect the public from trademarks
that might offend them. That’s the reason that the constitutional
issue comes forward is, is protecting people from offensive speech. There are two types of discrimination that
have been discussed with reference to this case. One is viewpoint discrimination, and the other
is content discrimination. The idea of viewpoint discrimination is the
idea that the message that is being prohibited, if it was a message to the contrary, would
be permitted. The idea of content discrimination is that
the speech that is being regulated is being regulated purely based on the content for
which it being said. In the Matal case, the idea of viewpoint discrimination
was on display because the Trademark Office refused to register the mark “The Slants”
because it was a derogatory term referring to, uh, the Asian population while the Trademark
Office was perfectly happy to register other trademarks that referred to Asians, such as
“Celebrasian” or the “Asian Efficiency”. The best argument I think for Iancu in this
case is the idea that this is different than Matal versus Tam. In Matal versus Tam, there was a very clear
expressive component to this speech. The, the term was chosen by a, an Asian band
to reclaim a term that had been used in a derogatory manner towards Asians. In this case, the term wasn’t selected to
try to reclaim a term that had otherwise been, uh, deemed derogatory. This instead is just a term that is, is generally
viewed as vulgar or obscene. There’s not the same idea that this is an
expressive trademark that’s really putting forth a, a viewpoint that needs to be heard. The government is arguing that there a number
of open questions left after the Matal versus Tam case, such as whether or not this is commercial
speech and thus should be, uh, viewed with less strict scrutiny, uh, that could help
distinguish this case from Matal versus Tam. The best argument for Mr. Brunetti is simply
this is Matal versus Tam. The provision in the Matal versus Tam case was disparaging,
but the immoral and scandalous clause is in the same section of the Lanham Act, and is
also largely content based. Even if it’s not viewpoint discriminatory
it’s content discriminatory. In fact, the discussion that was had by the
trademark examiner and the TTAB is that Mr. Brunetti’s mark was vulgar, that it referred
to misogyny, that it was lewd. So they’re clearly looking at the content
of his, um, proposed trademark to be registered, uh, and with that that’s regulation on free
speech. And so I think Mr. Brunetti’s best argument
is, is that Matal versus Tam should be extended to also find unconstitutional the immoral and
scandalous clause of the Trademark Act.

5 Comments

  • Joey B.

    I'm so glad we have Big Brother in Washington to tell us what's "immoral & scandalous". This may be a crude question, but how is this not a first amendment issue first and foremost? I thank you for your time.

  • Afure Zero

    using offensive words is a very natural part of expressing a viewpoint on something, as it enables one to very clearly stress how much they love or hate something. the government has very little room to get away this time as well. the immoral and scandalous clause clearly amounts to viewpoint discrimination

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