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The post-Supreme Court ruling future of offensive trademarks

As with any Supreme Court decision, the recent ruling striking down a 70-year ban on the registration of disparaging trademarks has wide-ranging effects. Most prominently, the Washington Redskins, an NFL team who lost their trademark due to its offensive nature, may likely become the one of the largest beneficiaries.

Businesses on the fringe of what is deemed “acceptable” may use it to their benefit as well. The ruling is equally advantageous to red-light sector companies who are in the business of shock value, branding themselves with racy or potentially offensive names.

The Patent and Trademark Office has already rejected trademarks for adult video sites, novelty toys, and even an alcoholic beverage bottle in the shape of a fist featuring an extended middle finger. It is entirely possible that these trademarks will now get approval.

They may exist on the “fringe,” but their trademarks are not disparaging any groups. According to the PTO, their “crime” is being immoral or scandalous, a factor that may no longer be considered unconstitutional.

For broad-based companies, it will be business as usual. They will likely steer clear of controversial trademarks. However, what is scandalous now may not be so ribald in the future. A trademark once rejected in the past could serve as the cutting-edge intellectual property of the future.

Clothing and alcohol industries continue to push the envelope in their branding. Currently the PTO has approximately 90 applications incorporating the F-word in some form or fashion. Microbreweries with unique nom de plumes that just stop short at the line of civility could hurdle over it with their trademark registrations.

For now, the PTO will review the high court’s decision and issue guidance regarding its Trademark Manual of Examining Procedure.

Regardless of a high court ruling, businesses have limits. Obscenity has no First Amendment protections.

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