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Supreme Court rules in favour of clothing designer on ‘immoral or scandalous’ trademarks

Chris Riotta

The US Supreme Court has sided with a California fashion brand called FUCT in a case involving a century-old law banning the registration of “scandalous or immoral” trademarks nationwide.

The provision is an unconstitutional restriction on free speech, the court ruled on Monday.

The ruling means people and companies behind applications that previously failed as a result of the scandalous or immoral provision can re-submit them for approval, and that 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 penalise or discriminate against expression based on the ideas or viewpoints they convey. Lanham Act’s ban on “immoral or scandalous” trademarks does just that, the justice added.

Donald Trump’s administration had previously defended the provision, arguing that it encouraged trademarks suitable for all audiences.

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 who supplied false trademark registrations also became difficult as a result of the federal law.

In an opinion for herself and five colleagues, both conservatives and liberals, Ms 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.

Ms Kagan’s opinion suggested that a narrower law covering just lewd, sexually explicit or profane trademarks might be acceptable.

The Associated Press contributed to this report