This past June the US Supreme Court ruled that by refusing to register trademarks that were of a “disparaging” nature, the federal government was violating the First Amendment. In that case, an Asian American rock group called the “Slants” tried to register their name but was rejected by the US Trademark Office. In ruling against the government, the court said that the “disparagement” clause of the federal trademark law was not constitutional in that “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
Now just six (6) month later, the Federal Circuit has determined that the U.S. Supreme Court‘s recent decision striking down the Lanham Act’s ban on “disparaging” trademark registrations supports their ruling against the government’s efforts to bar “scandalous and immoral” marks. The court found that the government’s rule against registering profane, sexual and otherwise objectionable language violates the First Amendment and should also be considered unconstitutional.
In this case the U.S. Trademark Office refused a trademark registration for the word “Fuct.” “The trademark at issue is vulgar,” U.S. Circuit Judge Kimberly A. Moore wrote… “The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public.”
It is expected that the number of new trademark filings that might have otherwise been considered to be “disparaging” or “scandalous and immoral” and rejected under the prior law, will continue to increase.