A few months ago the U.S. Supreme Court decided that the federal law barring trademark registration for marks that may or do “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” was an unconstitutional violation of the First Amendment. We noted at the time that the Court’s decision did not address marks that may be considered “immoral … or scandalous”, which are barred under the same section of the federal statute. It is now evident that the US Trademark Office still considers scandalous and immoral marks to be off-limits, at least for the time being.
When the matter of disparaging trademarks appeared on the Supreme Court’s docket, the U.S. Trademark Office adopted a policy of suspending examination of all marks that their examiners determined to be disparaging, immoral, and/or scandalous. Shortly after the Supreme Court’s decision regarding “the disparagement clause,” most applications for trademarks seen to be only disparaging were released, and many of those marks have been registered. Without specific guidance on the further prohibitions, however, examiners began to refuse registration of marks they deemed “immoral” and/or “scandalous,” and it didn’t take long for the question to come before the courts. Currently at least one such refusal – to register the term FUCT – is currently before the Court of Appeals for the Federal Circuit, and we have seen evidence that the Trademark Office will be suspending examination of other perceived scandalous and immoral trademarks. We will report further on this as this case moves forward.