Is the Limiting of Scandalous Marks a Viewpoint Neutral Government Activity?

by Dennis Crouch

In the FUCT scenario (In re Brunetti), the Federal Circuit mooted the Lanham Act’s prohibition against registering immoral or scandalous marks — keeping the limitation to be an unconstitutional restriction of free of charge speech and reversing the TTAB keeping that Bruneti’s “FUCT” mark is unregistrable.  The FUCT scenario follows the Supreme Court’s 2017 SLANTS final decision (Matal v. Tam) which in the same way voided the prohibition on registering disparaging marks. (Erik Brunetti is demonstrated on the correct.)

 

The US Government (USPTO/DOJ) has petitioned for en banc evaluation of the final decision – arguing that the immoral/scandalous prohibition really should stand.  Notably, the US argues that restricting registration of disparaging marks in Tam was a lot more suspect simply because it was directed towards a unique viewpoint (e.g., disparagement of men and women …). On the other hand, the prohibition on registering scandalous marks is viewpoint neutral.  In spite of that change, the Federal Circuit used a strict scrutiny exam.  The Federal Circuit argues that strict scrutiny really should not use below but rather that the Federal Circuit really should build a separate and new exam for “the constitutionality of viewpoint-neutral limits on registrability.”

Brunetti has responded. The quick is definitely not the ideal ever submitted, but it raises vital details:

  • Scandalous Marks: The Government improperly asserts that the Clause only prohibits registration of marks that have “profanity, excretory or sexual” make any difference — regardless of the simple language of the text.
  • Using “Dirty” Phrases as a Assertion: “[T]he Government chooses to ignore the Supreme Court’s final decision that profanity is viewpoint.” See Cohen v. California, 403 U.S. 15 (1971).
  • As used:  “It is obvious that lots of marks refused as scandalous . . .  are expressing viewpoint. Specifically in this scenario, the [TTAB] affirmed the refusal of Brunetti’s  mark simply because of his viewpoint. The Board asserted that Brunetti “objectifies women and features degrading examples of intense misogyny,” “anti-social imagery,” is “lacking in style,” and contains a topic “of intense nihilism—displaying an never-ending succession of anti-social imagery of executions, despair, violent and bloody scenes including dismemberment, hellacious or apocalyptic gatherings, and dozens of examples of other imagery missing in style.” Even though the Board improperly characterised Brunetti’s sights, it is clear that his sights were being intertwined with the Board’ final decision as to whether or not his mark is scandalous.
  • Plan Parade: What if the Government Could Restrict Scandalous/Immoral Statements: “What is genuinely horrifying is what state and community governments could do if the Scandalous Clause were being constitutional. For example, a town could deny a license if it did not like the identify of the restaurant (Sambo’s Eating places, Inc. v. Town of Ann Arbor, 663 F. 2d 686 (6th Cir. 1981)), the identify of the corporation (Kalman v. Cortes, 723 F.Supp.2d 766 (ED. Pa. 2010) (involving “I Decide on Hell Productions LLC”), or a label (Poor Frog Brewery v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998)). . . . If the Scandalous Clause were being constitutional then a town or state could proficiently stop disfavored corporations from carrying out company by denying company licenses, product sales tax permits, and many others., on the grounds that these kinds of corporations or their names are scandalous. Each the NRA and Prepared Parenthood could be proficiently prevented from running in different areas of this country depending on the political sights of the locality.  . . .

Browse the briefs:

We are all FUCT

 

 

 

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Dennis Crouch


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