Federal Court to Decide Whether Immoral Trademarks Violate the First Amendment

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Summary: A federal court will determine whether “smutty” or “immoral” trademarks may be banned.

According to CorpCounsel.com, the U.S. Court of Appeals will soon decide whether banning “smutty” or “immoral” trademarks is a violation of the First Amendment of the United States Constitution.

  

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The U.S. Patent and Trademark Office refused to allow Katy Perry to trademark “Left Shark.”

The federal court recently supported the U.S. Patent and Trademark Office’s decision to deny registration for the trademark “The Slants.” In its refusal, the U.S. Patent and Trademark Office noted Section 2(a) of the Lanham Act, which says that trademarks shall be rejected if they are comprised of “immoral, deceptive or scandalous matter” that denigrates people or entities, bringing them into “contempt or disrepute.” According to Reuters, the Asian-American band was denied the trademark because its name disparaged those of Asian ethnicity.

A group of law schools has joined the U.S. Patent and Trademark Office pilot program.

Michael Palmisciano of Sullivan & Worcester explains, “In their briefs, the parties are to specifically address the following issue: Does the bar to registration of disparaging marks … violate the First Amendment?” The pending decision could have a significant impact on trademark law, especially if the court finds the ban unconstitutional. For example, trademarks such as “Redskins” may be acceptable, according to TrendingTrademarks.com. Additionally, Palmisciano said that, even though the court is not addressing “scandalous” and “immoral” marks, the court may include these issues in its decision.

Last year, the trademark “Redskins” was rejected.

Source: CorpCounsel.com

Photo credit: trademarkapplicationhq.com, sandw.com (Palmisciano)