Shocking your clients just became passé: US Court takes away the edge from scandalous brands

Thanks to two recent rulings of the US Supreme Court and the Court of Appeals of the Federal Circuit Court, trade marks containing “disparaging”, “immoral” and “scandalous” matter are no longer barred from obtaining registration in the United States of America. In the past, the US Patent and Trade Mark Office (USPTO) had the power to refuse to register trade marks containing such matter under provisions that have now been struck down for violating the First Amendment right to free speech. In this article, we consider the current position in the United States in the wake of these decisions, and compare this with the interpretation and application of the equivalent Australian provision dealing with “scandalous” trade marks. The current position in the United States Section 2(a) of the US Lanham (Trademark) Act provides that no trade mark shall be refused registration unless it, inter alia, “consists of or comprises immoral,…

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