CAFC addresses immoral/scandalous marks in Brunetti; 2(a) bar found unconstitutional

From the opening:Erik Brunetti appeals from the decision of the TrademarkTrial and Appeal Board (“Board”) affirming theexamining attorney’s refusal to register the mark FUCTbecause it comprises immoral or scandalous matter under15 U.S.C. § 1052(a) (“§ 2(a)”). We hold substantial evidencesupports the Board’s findings and it did not errconcluding the mark comprises immoral or scandalousmatter. We conclude, however, that § 2(a)’s bar on registeringimmoral or scandalous marks is an unconstitutionalrestriction of free speech. We therefore reverse theBoard’s holding that Mr. Brunetti’s mark is unregistrable. Yes, Tam is cited:When Mr. Brunetti filed his appeal, his constitutionalargument was foreclosed by binding precedent. InMcGinley, our predecessor court held the refusal to registera mark under § 2(a) does not bar the applicant fromusing the mark, and therefore does not implicate the FirstAmendment. 660 F.2d…

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