Pardalis & Nohavicka Trademark Law Update

Pardalis & Nohavicka Trademark Law Update: Ban on "Scandalous and Immoral" Trademark Suggestions Get Debated

Lanham Act's bar on "scandalous and immoral" trademark suggestions, covering profane, sexual and objectionable language, was torn into by the Federal Circuit Panel.

In June, the Supreme court ruled in the case of Matal v. Tam that the ban on registering disparaging marks violates the First Amendment.

The government argued that the ban on scandalous and immoral trademarks was viewpoint neutral, but U.S Circuit Judge Kimberly Moore disagreed. While the government says that indecent contact would be equally denied to everyone, Judge Moore's surveys of every rejection over the past few decades revealed that the U.S Patent and Trademark Office was treating the same words differently depending on the context.

When asked to articulate what the government's substantial interest is in preserving the constitutionality of this matter, counsel for the government replied that the question "further buttresses our point", while attorney John Sommer, arguing for Brunetti, claimed that the point of the First Amendment is the free marketplace of ideas. He also raised the question, "What business is it of the government to determine morality?".