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Supreme Court to look USPTO's judgement on explicit trademarks

The Supreme Court last week announced that it would examine whether the U.S. Patent and Trademark Office (USPTO) could reject trademark applications based on the nature of the trademarked subject matter and language. The USPTO currently has the 113-year-old statutory provision in the Lanham Act, which forbids scandalous, immoral, vulgar or deceptive trademarks.

The case of Iancu v. Brunetti is being heard this spring at the request of the government as well as clothing designer Erik Brunetti. Brunetti founded the Fuct street wear clothing and has been trying to trademark the clothing line’s name since 2012. The application has been rejected because of the implication of the name, but the clothing company also did not help its cause by often using explicit sexual imagery in its advertising copy.

Further defining a law

Eighteen months ago the court voted unanimously in favor of the Slants in Matal v. Tam. This case involved on an Asian band with a derogatory name. While judges had different reasons for supporting the band’s right to trademark its name, it came down to the fact that freedom of speech superseded the USPTO’s judgment of what is appropriate.

The USPTOs judgment call is not acceptable

According to various news reports, lawyers for Fuct have pointed out that other boundary-pushing-but-approved trademarks include WTF, FCUK and FWORD. There are also a variety of trademarks referencing other off-color words. The lawyer went on to point out in a statement: “Raising babies is sweet, making babies is disgusting. Kissing is fine, sex is dirty. Feminism is good, misogyny is bad. The word PENIS is allowed, an outline of a penis is not.”

Protecting your rights in trademark law

Running afoul of the Lanham act can be frustrating and leaves individuals and businesses struggling to protect their products and property. A knowledgeable attorney with intellectual property experience can be a tremendous asset determining what may be rejected by the USPTO and how to appeal its decisions.

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