In re Brunetti

United States Court of Appeals for the Federal Circuit · 2017 · Property

PropertyTrademarkFirst AmendmentLanham Act§ 2(a)immoral or scandalous marksvulgaritycontent discrimination

Facts

Brunetti sought federal registration of the trademark FUCT. The PTO and the Board refused registration under § 2(a), finding the mark vulgar and therefore scandalous. The agency also relied on the expressive message it perceived in Brunetti's use of the mark, describing it as objectifying women, misogynistic, nihilistic, and anti-social. After intervening decisions in Tam, the Federal Circuit requested supplemental briefing on whether § 2(a)'s immoral-or-scandalous provision could constitutionally be applied.

Issue

Whether § 2(a)'s prohibition on registering immoral or scandalous marks violates the First Amendment. Also, whether Brunetti's mark FUCT was properly found vulgar and scandalous under existing precedent.

Rule

A mark may be deemed scandalous under existing precedent if substantial evidence shows it is vulgar. But § 2(a)'s bar on registering immoral or scandalous marks is unconstitutional because it targets the expressive content of speech; as a content-based restriction it cannot survive strict scrutiny, and it also fails intermediate scrutiny under Central Hudson because the government did not identify a substantial interest, did not show the provision directly advances that interest, and did not show the provision is narrowly tailored.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Ortega, a clothing designer in Phoenix, applies to register the mark "HELL YES" for jackets. The examining attorney refuses registration solely because many members of the public would find the phrase offensive and improper.

If Nina challenges the refusal on First Amendment grounds, what is the strongest argument that the refusal is unconstitutional?

Explanation. The majority held that the immoral-or-scandalous bar is unconstitutional because it targets a mark's expressive content. A law is content based when it applies because of the idea or message expressed, and refusals based on whether a substantial composite of the public finds a mark offensive fit that description. The court rejected the old view that denial of registration raises no First Amendment issue, and it did not treat offensive trademarks as categorically unprotected speech.