CAFC Rules That The Section 2(A) Bar For Immoral Or Scandalous Marks Is Unconstitutional

The United States Court of Appeals for the Federal Circuit has ruled that the Section 2(a) bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech. The CAFC therefore reversed the decision of the TTAB ( here) that had affirmed the USPTO's refusal to register the mark FUCT for athletic apparel on the ground that the mark is vulgar and therefore scandalous. In re Brunetti, Appeal No. 2015-1109 (Fed. Cir. December 15, 2017) (Opinion by Circuit Judge Kimberly A. Moore).

Scandalous or Immoral? Section 2(a), in pertinent part, provides that the USPTO may refuse to register a mark that "[c]onsists of or comprises immoral ... or scandalous matter." The USPTO does not distinguish between "immoral" and "scandalous" matter but rather applies the 2(a) bar as a unitary provision ("the immoral or scandalous provision"). In considering this disqualification, the USPTO asks whether "a substantial composite of the general public" would