In the case of Iancu versus Brunetti, what's at issue is whether or not the Trademark Office
should be required to register marks that are immoral or scandalous, that is, marks
that might offend a substantial portion of the general population.
The parties are Iancu, who's Director of the Patent and Trademark Office, and Mr. Brunetti,
who is the founder of a clothing company that sells high-end, modern, edgy street wear under
the brand name FUCT.
Mr. Brunetti, uh, tried to register as a trademark the name of his company, FUCT, and the Trademark
Office, uh, rejected his application as being, uh, immoral or scandalous under Section 2(a)
of the Lanham Act.
The Lanham Act was, uh, enacted back in the, the mid to late 1940s and it basically covers
trademark law.
The provision of the Lanham Act that's at issue in this case is Section 2(a) and specifically
the immoral or scandalous clause.
So the terms immoral and scandalous have generally been interpreted as being offensive to a substantial
portion or a significant portion of the general population.
So the usual uses of Section 2(a), immoral and scandalous, are generally to deny registration
of marks that are related to sex, drugs, or religion.
The motive for denying registration of marks that are either disparaging, as in the Matal
versus Tam case, or immoral or scandalous, as in the Brunetti case, is the idea that
we want to protect the public from trademarks that might offend them.
That's the reason that the constitutional issue comes forward is, is protecting people
from offensive speech.
There are two types of discrimination that have been discussed with reference to this
case.
One is viewpoint discrimination, and the other is content discrimination.
The idea of viewpoint discrimination is the idea that the message that is being prohibited,
if it was a message to the contrary, would be permitted.
The idea of content discrimination is that the speech that is being regulated is being
regulated purely based on the content for which it being said.
In the Matal case, the idea of viewpoint discrimination was on display because the Trademark Office
refused to register the mark “The Slants” because it was a derogatory term referring
to, uh, the Asian population while the Trademark Office was perfectly happy to register other
trademarks that referred to Asians, such as “Celebrasian” or the “Asian Efficiency”.
The best argument I think for Iancu in this case is the idea that this is different than
Matal versus Tam.
In Matal versus Tam, there was a very clear expressive component to this speech.
The, the term was chosen by a, an Asian band to reclaim a term that had been used in a
derogatory manner towards Asians.
In this case, the term wasn't selected to try to reclaim a term that had otherwise been,
uh, deemed derogatory.
This instead is just a term that is, is generally viewed as vulgar or obscene.
There's not the same idea that this is an expressive trademark that's really putting
forth a, a viewpoint that needs to be heard.
The government is arguing that there a number of open questions left after the Matal versus
Tam case, such as whether or not this is commercial speech and thus should be, uh, viewed with
less strict scrutiny, uh, that could help distinguish this case from Matal versus Tam.
The best argument for Mr. Brunetti is simply this is Matal versus Tam. The provision in
the Matal versus Tam case was disparaging, but the immoral and scandalous clause is in
the same section of the Lanham Act, and is also largely content based.
Even if it's not viewpoint discriminatory it's content discriminatory.
In fact, the discussion that was had by the trademark examiner and the TTAB is that Mr.
Brunetti's mark was vulgar, that it referred to misogyny, that it was lewd.
So they're clearly looking at the content of his, um, proposed trademark to be registered,
uh, and with that that's regulation on free speech.
And so I think Mr. Brunetti's best argument is, is that Matal versus Tam should be extended
to also find unconstitutional the immoral and scandalous clause of the Trademark Act.