Is the Limiting of Scandalous Marks a Viewpoint Neutral Government Activity?

by Dennis Crouch In the FUCT case (In re Brunetti), the Federal Circuit mooted the Lanham Act’s prohibition against registering immoral or scandalous marks — holding the limitation to be an unconstitutional restriction of free speech and reversing the TTAB holding that Bruneti’s “FUCT” mark is unregistrable.  The FUCT case follows the Supreme Court’s 2017 SLANTS decision (Matal v. Tam) which similarly voided the prohibition on registering disparaging marks. (Erik Brunetti is shown on the right.)   The US Government (USPTO/DOJ) has petitioned for en banc review of the decision – arguing that the immoral/scandalous prohibition should stand.  Notably, the US argues that limiting registration of disparaging marks in Tam was more suspect because it was directed toward a particular viewpoint (e.g., disparagement of people …). On the other hand, the prohibition on registering scandalous marks is viewpoint…

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