First Amendment Protects Trademark Owners from Government Censorship

On December 15, 2017, in In re Brunetti, Case No. 2015-1109 (Fed. Cir. Dec. 15, 2017), the United States Court of Appeals for the Federal Circuit held that the federal trademark statute's (the "Lanham Act's") bar on registration of immoral or scandalous marks is an unconstitutional restriction of free speech. If this decision stands, Mr. Brunetti may obtain federal registration of his FUCT mark for use with clothing. The result is not terribly surprising in light of the United States Supreme Court's holding earlier this year that the Lanham Act's bar of disparaging marks violated the First Amendment. 

Section 2(a) of the Lanham Act allows the United States Patent and Trademark Office (the "PTO") to refuse to register any mark comprised of scandalous or immoral matter. To determine whether a mark comprises scandalous or immoral matter, the PTO asks whether a substantial composite of the general public would find the mark scandalous. To prove a mark is scandalous, one