“Corrupt or Scandalous” Bar on Trade Mark A Violation of Free Speech? – US Supreme Court Ruling

Categories: Asma Raza


The Lanham Act, otherwise called the Trademark Act of 1946 is a US Federal rule that administers the trademarks, administration marks and unreasonable challenge, like the Trademarks Act of India. Under the demonstration any trademark which involves unethical, tricky or outrageous issue which may trash or dishonestly propose an association with people, living or dead, establishments, convictions or national images or bring them into hatred or notoriety or is shocking in nature can’t be enrolled. All such imprint that may affront or disturb the sentiments of a specific order of individuals or an imprint that relates to a word which is hostile in nature or might be a slang, are all “unethical or shocking” marks and their enlistment is denied under the Lanham Act.

The United States Supreme Court in its ongoing judgment of LANCU v. BRUNETTI investigated this specific part of the Lanham Act. The Supreme Court deliberately examined the defendability of such a confinement and proceeded to decree that the “indecent or shameful” bar on the enrollment of trademarks disregards the privilege to the right to speak freely of discourse and articulation ensured by the First revision to the US Constitution as it “separates based on perspective”.

History of the case

The respondent Erik Brunetti and his partner were running a clothing brand by the name of “FUCT” which was an abbreviation for “Friends you can’t trust”. Brunetti wanted to get this mark registered under the Lanham Act. Both the PTO examining attorney and the mark Trial and Appellate board declined this request. The reason they gave for such denial was that the word “FUCT” was “highly offensive” and “vulgar” and had “decidedly negative sexual connotations”. The mark in question was phonetically very similar to an offensive slang in popular culture and thus it was denied registration for being immoral and opposed to standards of society.

The board also considered evidence on how Brunetti used this mark, they found that Brunetti’s website and products contained imagery of anti-social behaviour. The board finally concluded that the term and the way it was used was extremely offensive and thus declined the request for its registration. Following the decision of the appeal board, Brunetti appealed to the US Court of appeals which then revered the board’s decision, held this bar to violate the First Amendment and thus unconstitutional. The PTO then appealed to the Supreme Court which upheld the Court of Appeal’s decision.

Examination OF THE ISSUE

The US Supreme Court previously considered the test to Trademark enrollment under the First correction in MATAL v. TAM[1] in 2017.[2] In the said case, there was refusal of trademark enrollment because of the imprint condemning anybody living or dead. They held that the slander statement was biased as it favored one view point over another. The legislature can’t make laws favoring one view point and totally ignoring another. The Supreme Court consistently held that on the off chance that a trademark enrollment bar is see point based, at that point it would be unlawful and that the slander proviso of the Lanham Act was see point based as it permitted enlistment of trademark on the off chance that it was sure about an individual or gathering of individuals yet not in the event that it was critical.

In the present instance of Brunetti, the bar on the enlistment of purported “Indecent or Scandalous” marks was dissected. The court saw that the “unethical or shocking” bar also separates based on perspective. It saw that the Lanham Act permits the enlistment of imprints that are in accordance with society’s feeling of tolerability and ethical quality, yet not when such stamps challenge them. The follow up on its substance segregates between two group of thoughts and disfavours the one which challenges society’s concept of ethical quality or “inciting offense and judgment”, to cite the court.[3]

The court additionally gave models with regards to the different imprints that were prevented enlistment on the grounds that from securing them being “shocking” in nature, one of them being “Pot COLA”, the equivalent was denied enrollment because of it “glamorizing drug misuse”. PTO additionally denied enlistment tomark “BONG HITS 4 JESUS” expressing the motivation to be “Christians would be ethically offended by an explanation that interfaces Jesus with illicit medication use”. In any case, then again, PTO affirmed stamps, for example, “Applause THE LORD” for a game or “JESUS DIED FOR YOU” for attire, as them two are in accordance with strict convictions and ethics.

The above imprints that were not enlisted were profoundly hostile to most Americans, however in TAM the court obviously saw that “thoughts” that may will in general outrage individuals can’t be denied enrollment and that it damages the primary revision.

The Court saw that the differentiation made in Lanham Act doesn’t stop at marks that are, independent of their view point, hostile in nature or whose method of articulation is hostile. It covers every single such imprint that may will in general be “indecent” in nature which is extremely emotional from individual to individual. It segregates based on perspective which obstructs the privilege of free discourse in a general public as Trademarks are business articulation of discourse. Along these lines permitting Brunetti to enlist his imprint and announcing the bar to be illegal.


The implication of such a judgement is far reaching, people would now be able to register marks that they have created their goodwill with. Initially the marks that were considered vulgar or obscene in nature would now be registered under the Act. Legislative action was also suggested in the judgement to make sure that the law is not abused as with the judgement, people will try to register marks that are indeed disrespectful in nature or are entirely vulgar, irrespective of their view-point. The judgement will have far reaching reforms as marks, that are although not obscene but were denied registration due to orthodox thinking or so called morals of the society/moral policing, will now to able to gain protection under the act in the US.

The judgement is a landmark one and can work as a guiding force for all other countries, including India, which impose such restrictions on trademark registration; to amend their laws and pave way for free speech and expression. If not a complete removal of such restriction, at least a reduction in the sternness of the provision is certainly necessary with the changing attitude of the youth and the society.


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