News [FUCT] SCOTUS to consider constitutionality of vulgar trademarks

[InfoGuy]

Argument preview: Justices to consider constitutionality of banning trademark registration for immoral and scandalous marks

Trademark law is a consumer protection mechanism. It promotes fair competition by preventing consumer confusion and deception in the marketplace, and incentivizes producers to develop goodwill in their goods and services. Trademark rights begin with use of a mark in commerce, and registration with the U.S. Patent and Trademark Office is not necessary. However, significant rights accrue from registration, such as a presumptive right of validity, constructive nationwide rights, the potential for incontestability, priority for certain international filings, and customs benefits to restrict importation of infringing products.

Section 2 of the Lanham Act prohibits certain trademarks from being registered, including, for example, deceptive trademarks, marks that are merely descriptive of products or services, and those that cause a likelihood of confusion in the marketplace. For decades, Section 2(a) has also prohibited registration of trademarks that are deemed offensive in certain ways — specifically those that may be “disparaging” to individuals or groups, and those deemed “scandalous” or “immoral.” In 2017, the Supreme Court struck down the prohibition on registration of disparaging trademarks on the basis that the provision constituted viewpoint discrimination in violation of the First Amendment. Now, in Iancu v. Brunetti, the court will consider whether the prohibition on registration of scandalous and immoral marks is unconstitutional.