The Federal Circuit Court of Appeals has ruled that a century-old provision in the Lanham Act disallowing registration of “immoral” or “scandalous” trademark names violates the constitutional right to free speech. Consequently, plaintiff Erik B. will be allowed to trademark the “FUCT” label on his apparel brand.
Section 2(a) of the Act permits the Patent and Trademark Office to refuse to register a trademark that comprises “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”
To determine whether matter is immoral or scandalous, PTO decides whether a “substantial composite of the general public” would find the mark shocking, disgraceful, or offensive.
Erik founded the “FUCT” brand in 1990, and in 2011 filed an intent to-use application with PTO for the mark to be displayed on clothing. The examining attorney refused to register the mark under Section 2(a), finding it comprised immoral or scandalous matter because it could be interpreted as the past tense of the “F” word.
Erik appealed to the Trademark Trial and Appeal Board, which affirmed the denial on the grounds that dictionary definitions uniformly characterize the “F” word as offensive, profane, or vulgar. Further, the Board found the mark was used in the context of what it called explicit and degrading sexual imagery depicting extreme misogyny and other violent and anti-social imagery. Continue reading