Home » Copyright/Intellectual Property » Supreme Court Strikes down Ban on ‘Immoral or Scandalous’ Trademarks

Supreme Court Strikes down Ban on ‘Immoral or Scandalous’ Trademarks

24 June 2019

From The Wall Street Journal:

The Supreme Court ruled 6-3 Monday that the government may not deny registration to trademarks it deems “immoral or scandalous,” finding that the Patent and Trademark Office violated the First Amendment when it applied such criteria to brand names.

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints it conveys,” Justice Elena Kagan said, summarizing the court’s opinion from the bench. “The First Amendment does not allow the government to penalize views just because many people, whether rightly or wrongly, see them as offensive.”

All nine justices agreed that the government had no business deciding what images or words were immoral and thus excluded from the benefits of trademark registration. But three said the ban on scandalous trademarks could serve a legitimate purpose in withholding legal protection from vulgarity and profanity.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

Copyright/Intellectual Property

4 Comments to “Supreme Court Strikes down Ban on ‘Immoral or Scandalous’ Trademarks”

  1. Terrence OBrien

    Anyone know if the same type of restrictions have been enforced against registering copyright for books?

    • I think First Amendment freedom of the press protections makes the denial of copyright protection a different proposition than trademark rights, T.

    • Felix J. Torres

      Hmm, interesting question.
      Copyright protects *expression* of ideas rather than the idea itself…but titles aren’t copyrightable.

      I suspect the issue wouldn’t arise because government wouldn’t even try to regulate narratives. That would explain how scams and truly offensive material survives.

    • It’s not a huge sample, but things like _How to S**t in the Woods_ and similar titles are/were readily available in hiking and camping stores.

      And for those who are wondering, yes, it is a guide to proper sanitation for back-country hikers and others who are away from “improved” facilities.

Sorry, the comment form is closed at this time.