Caseflicks

Supreme Court of the United States • 2019

Iancu v. Brunetti

588 U.S. 388 | 139 S. Ct. 2294 | 204 L. Ed. 2d 714 | 2019 U.S. LEXIS 4201

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Takeaway

In short, the government cannot deny trademark registration because a mark expresses ideas it finds morally offensive.

Background

Erik Brunetti sought to register FUCT as a trademark for his clothing line. Although he said the name was pronounced letter by letter, the Patent and Trademark Office (PTO) treated it as vulgar and refused registration under the Lanham Act’s bar on “immoral or scandalous” marks. Federal registration is optional, but it gives trademark owners valuable legal benefits.

Brunetti challenged the bar under the First Amendment. The Federal Circuit held it unconstitutional, and the Supreme Court affirmed.

Issues

Issue #1

Whether the Lanham Act’s bar on registering “immoral or scandalous” trademarks unconstitutionally discriminates based on viewpoint.

Holding

Yes. The bar favors some ideas over others and therefore violates the First Amendment.

Reasoning

In Matal v. Tam, the Court agreed that a trademark-registration rule is unconstitutional if it discriminates based on viewpoint. The government may not deny registration because it disapproves of the ideas a mark expresses.

The ordinary meanings of “immoral” and “scandalous” favor marks that accord with conventional moral standards and disfavor marks that challenge or offend those standards. The statutory language thus draws a line between opposing viewpoints.

The PTO’s decisions illustrated that distinction: it refused marks conveying disapproved views about drugs, religion, and terrorism while registering marks expressing more accepted views on those subjects.

The government proposed reading the bar to cover only offensive modes of expression, chiefly lewd, sexually explicit, or profane marks. But the statute reaches much further. The Court could not adopt that narrower reading without rewriting the law.

The Court declined to preserve the bar because some of its applications might be permissible. Its viewpoint bias was decisive; in any event, the bar reached a substantial range of ideas, not merely vulgar words. The Court did not decide whether Congress could enact a narrower, viewpoint-neutral restriction.

Concurrences

Justice Alito

Reasoning

Justice Alito agreed that the statute could not be saved without rewriting it, but emphasized that Congress could enact a narrower, viewpoint-neutral rule against registering vulgar terms—potentially including Brunetti’s mark.

Dissents

Chief Justice Roberts

Reasoning

Chief Justice Roberts agreed that the “immoral” bar was invalid, but would have read “scandalous” to cover only obscene, vulgar, or profane expression. In his view, denying the benefits of registration to those marks would not restrict their owners’ speech.

Justice Breyer

Reasoning

Justice Breyer would have upheld a narrowed “scandalous” bar. Rather than let rigid speech categories decide the question, he would weigh its limited effect on expression against the government’s reasons for withholding registration.

Justice Sotomayor

Reasoning

Justice Sotomayor agreed that “immoral” was viewpoint discriminatory, but would have preserved “scandalous” as a bar on obscenity, vulgarity, and profanity. She viewed that reading as reasonable and the resulting restriction as permissible in an optional registration system.