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Supreme Court decision allows profane trademark registrations

Businesses in Connecticut often look to protect themselves by registering a trademark for their brand of goods or services. In the past, federal law banned people from registering trademarks deemed "immoral" or "scandalous." This provision has been used over the years to prevent the registration of trademarks generally considered to contain foul language. However, the nation's highest court ruled on June 24 that the prohibition violates the First Amendment's free speech protections. The decision paves the way for a clothing company to trademark a name that bears resemblance to a common slang term.

The Trump administration argued in favor of the trademark prohibition, a law that had been upheld since 1905. A fashion designer, whose clothing trademark, "FUCT," was rejected by the U.S. Patent and Trademark Office, prevailed in the case. While all nine Supreme Court justices concurred that the prohibition of "immoral" trademarks violated the right to freedom of expression, three justices said that the ban on "scandalous" trademarks should have been upheld. The ruling followed the line of reasoning of an earlier case in 2017 in which the high court struck down a ban on "disparaging" trademarks.

The case had been winding its way through the courts since 2011, when the trademark application was rejected due to its similarity to a profanity. The federal Justice Department declined to comment after the ruling. Earlier, it had argued that lifting the prohibition would lead to a flood of new sexually explicit and profane trademark applications being filed.

Regardless of the content of the trademark, however, business owners can benefit heavily from seeking protection through trademark registration. Protecting intellectual property can be one of the most important ways for businesses to maintain a unique market share. An intellectual property attorney can help businesses register their trademarks and develop a strategy to protect them.

Source: Reuters, "Supreme Court allows foul language trademarks in F-word case," Andrew Chung, June 24, 2019

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