Supreme Court strikes down ‘scandalous’ part of trademark law

WASHINGTON — The Supreme Court struck down a section of federal law Monday that prevented businesses from registering trademarks seen as scandalous or immoral, handing a victory to California fashion brand FUCT.

The high court ruled that the century-old provision is an unconstitutional restriction on speech. Between 2005 and 2015, the United States Patent and Trademark Office ultimately refused about 150 trademark applications a year as a result of the provision. Those who were turned away could still use the words they were seeking to register, but they didn’t get the benefits that come with trademark registration. Going after counterfeiters was also difficult as a result.

The Trump administration had defended the provision, arguing it encouraged trademarks that are appropriate for all audiences.

The high court’s ruling means the people and companies behind applications that previously failed as a result of the scandalous or immoral provision can re-submit them for approval. And new trademark applications cannot be refused on the grounds they are scandalous or immoral.

Justice Elena Kagan said in reading her majority opinion that the most fundamental principle of free speech law is that the government can’t penalize or discriminate against expression based on the ideas or viewpoints they convey. She said Lanham Act’s ban on “immoral or scandalous” trademarks does just that.

In an opinion for herself and five colleagues, both conservatives and liberals, Kagan called the law’s immoral or scandalous provision “substantially overbroad.”

“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment,” she wrote.