First Amendment free speech wins over “immoral” or “scandalous” trademark limits. Today the Supreme Court decided a trademark case, Iancu v. Brunetti, about a mark used on a clothing line evoking an “immoral” or “scandalous” meaning, a “past participle” of profanity. Traditionally, the U.S. Patent and Trademark Office refused to register marks with profanity, judging them too “immoral” or “scandalous” for trademark protection under the Lanham Act. 15 U.S.C. §1052(a). Today, per Justice Kagan, the Court said the “immoral” or “scandalous” limit violates First Amendment free speech rights as viewpoint discrimination. Justice Alito agreed that “viewpoint discrimination is poison to a free society,” but urged Congress to update the law as registering profane “marks serves only to further coarsen our popular culture” and noted these marks “containing vulgar terms” “play no real part in the expression of ideas,” except showing “emotion and a severely limited vocabulary.” For their parts, Chief Justice Roberts and Justices Breyer and Sotomayor agreed and disagreed on some different points.
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