Iancu v. Brunetti

Whether Section 1052(a)’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the Free Speech Clause of the First Amendment.

Respondent sought to trademark his clothing line entitled “FUCT.” The United States Patent and Trademark Office (USPTO) denied the mark under 15 U.S.C. 1052(a) on the ground that it would be perceived as a “scandalous” term and The USPTO’s Trademark Trial and Appeal Board (Board) affirmed. Respondent sought review of the Board’s decision in the Court of Appeals for the Federal Circuit, arguing that the scandalous marks provision violated the First Amendment. The Court of Appeals first upheld the Board’s decision, but upon re-argument in light of the decision in Matal v. Tam, 137 S. Ct. 1744 (2017), the court reversed. In Petitioner’s brief to the Supreme Court, Petitioner argues that prohibiting federal registration of a “scandalous” trademark does not restrict Respondent’s speech, but merely denies affirmative promotion by the federal government. Petitioner argues that Tam is distinguishable, as the provision at issue in that matter was viewpoint-discriminatory and the scandalous marks provision is viewpoint-neutral. In addition, Petitioner argues that Respondent is not barred from trademarking the clothing line, only from federally registering the mark and that the eligibility requirement for registering trademarks is lawful. Furthermore, Petitioner argues that the government has an interest in excluding “scandalous” images and terms from the USPTO’s Register, just as it would exclude other explicit content from non-public and limited-public fora.