2019 United States Supreme Court case
Iancu v. Brunetti |
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Argued April 15, 2019 Decided June 24, 2019 |
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Full case name | Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office v. Erik Brunetti |
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Docket no. | 18-302 |
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Citations | 588 U.S. (more) 139 S. Ct. 2294; 204 L. Ed. 2d 714 |
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Argument | Oral argument |
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Case history |
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Prior | In re Brunetti, 877 F.3d 1330 (Fed. Cir. 2017); cert. granted, 139 S. Ct. 782 (2019). |
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Holding |
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The Lanham Act prohibition on the registration of "immoral" or "scandalous" trademarks infringes the First Amendment. |
Court membership |
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- Chief Justice
- John Roberts
- Associate Justices
- Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito Sonia Sotomayor · Elena Kagan Neil Gorsuch · Brett Kavanaugh |
Case opinions |
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Majority | Kagan, joined by Thomas, Ginsburg, Alito, Gorsuch, Kavanaugh |
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Concurrence | Alito |
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Concur/dissent | Roberts |
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Concur/dissent | Breyer |
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Concur/dissent | Sotomayor, joined by Breyer |
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Laws applied |
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Iancu v. Brunetti, No. 18–302, 588 U.S. ___ (2019), is a Supreme Court of the United States case related to the registration of trademarks under the Lanham Act.[1][2] It decided 6–3 that the provisions of the Lanham Act prohibiting registration of trademarks of "immoral" or "scandalous" matter is unconstitutional by permitting the United States Patent & Trademark Office to engage in viewpoint discrimination, which violates the Free Speech Clause of the First Amendment.[3]
Legal background
Section 2(a) of the Lanham Act, passed in 1946, holds that a trademark may be refused registration by the United States Patent and Trademark Office if the subject consists of "immoral, deceptive, or scandalous matter." Section 2(a) had also held that trademarks may be refused if they were deemed "disparaging" to individuals or groups, but the Supreme Court unanimously ruled in Matal v. Tam (2017) that the restriction on "disparaging" trademarks was unconstitutional under the First Amendment.[4]
Case background
Erik Brunetti started a clothing line with the skateboarder Natas Kaupas in 1990 and used the name Fuct (stylized as "FUCT"). Fuct stood as an initialism for "Friends U Can't Trust," but Brunetti felt its phonetic closeness to the expletive "fucked" was humorous.[5] Around 2010, Brunetti saw a number of knockoffs of his clothing line being sold on eBay and other Internet sites that inappropriately used the "Fuct" label.[6] In 2011, Brunetti sought to register the trademark on Fuct to stop the knockoffs but was denied registration by the Office Examiner. It stated the word was phonetically similar to the expletive "fucked," which was well-established as a "scandalous" word under Section 2(a) of the Lanham Act. The decision was upheld by the Trademark Trial and Appeal Board (TTAB) in 2014.[7]
Brunetti then appealed the decision to the United States Court of Appeals for the Federal Circuit with support of the American Civil Liberties Union (ACLU). The ACLU argued that the Supreme Court had already ruled there was a higher level of scrutiny when the mere display of a potentially offensive word can be regulated from the 1971 case Cohen v. California.[5] In 2017, the Federal Circuit agreed with the TTAB that "Fuct" would fall under the definition of a "scandalous" word for not only its similarity to the vulgar word but also the use of such words in the target youthful market for the clothing line. However, the Federal Circuit also ruled that the restriction against "scandalous" words of Section 2(a) of the Lanham Act was unconstitutional as it violated Brunetti's rights to free speech, particularly in light of the government failing to take any steps to regulate such speech across the Internet, and it reversed the TTAB's holdings. The Federal Circuit referred to its prior decision and its Supreme Court affirmation in Matal v. Tam related to "disparaging" trademarks in that outside of the area of trademarks, such language remains unrestricted as private speech but not government speech.[8][5]
Supreme Court
The Patent and Trademark Office, under its director Andrei Iancu, filed for writ of certiorari to the Supreme Court, which agreed to hear the case,[9] with oral arguments heard on April 15, 2019.[10][11] Observers believed that the majority of the Justices would favor Brunetti's case and strike out trademark restrictions on "immoral" or "scandalous" material in part because past inconsistency in the Office's application of the law by having past approved trademarks on "FCUK" and "FUBAR".[6]
The Justices raised the question of whether the implied word from "Fuct" would be considered scandalous to the clothing line's target audience of young adults, but also brought concerns that then the word would appear in advertising, which people outside of this demographic may consider inappropriate speech.[6] The Court expressed caution that others may follow suit with trademarking near matches to other well-established vulgar words and that it should be up to Congress to define a more exacting line, which otherwise does not violate the First Amendment.[11]
The Court issued its decision on June 24, 2019 that affirmed the decision of the Federal Circuit Court.[3] The majority opinion was written by Justice Elena Kagan, joined by Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Kagan wrote that as the Court had found in Matal v. Tam, the Office would need to engage in and has engaged in "viewpoint discrimination" to determine if trademark requests were on the vague definitions of "immoral" or "scandalous". With the Office as a government entity, that would be a violation of First Amendment rights and it was thus decided that the portion of the Lanham Act was unconstitutional.
Justice Samuel Alito wrote a concurring opinion, pointing out that the Court had to make this decision because of the vagueness of the "immoral" and "scandalous" terms in the law, but Congress is empowered to create law that would make a more narrow determination that removed the viewpoint discrimination concern for the Office.[12]
Separate opinions, each dissenting in part with the majority, were written by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. The three generally felt that interpreting the "immoral" aspect of the Lanham Act was difficult and thus agreed with the majority in striking that portion of the law.[13] However all three felt the "scandalous" interpretation was not as vague as majority opinion suggested and that the Office would not be engaging in viewpoint discrimination through that action. The three, along with Alito in his concurring opinion, expressed concern that this decision will lead to a flood of new trademarks that would be considered crude and the creation of public spaces that would be repugnant to some people.[12][14]
References
- ^ "Search - Supreme Court of the United States". Supremecourt.gov. Retrieved October 11, 2019.
- ^ "Iancu v. Brunetti | OSG | Department of Justice". Justice.gov. February 15, 2019. Retrieved October 11, 2019.
- ^ a b Iancu v. Brunetti, No. 18-302, 588 U.S. ___ (2019)
- ^ Liptak, Adam (June 19, 2017). "Justices Strike Down Law Banning Disparaging Trademarks". The New York Times. Retrieved June 30, 2019.
- ^ a b c Chung, Andrew (April 12, 2019). "F-words and T-shirts: U.S. Supreme Court weighs foul language trademarks". Reuters. Retrieved April 12, 2019.
- ^ a b c Totenberg, Nina (April 16, 2019). "Supreme Court Dances Around The F-Word With Real Potential Financial Consequences". NPR. Retrieved April 16, 2019.
- ^ "Trademark documents" (PDF). ttabvue.uspto.gov. August 1, 2014. Retrieved October 11, 2019.
- ^ "Court opinion" (PDF). www.cafc.uscourts.gov. December 15, 2017. Retrieved October 11, 2019.
- ^ "Iancu v. Brunetti: SCOTUS To Hear "Scandalous Marks" Case". Natlawreview.com. Retrieved October 11, 2019.
- ^ "Argument preview: Justices to consider constitutionality of banning trademark registration for immoral and scandalous marks". SCOTUSblog. April 8, 2019. Retrieved October 11, 2019.
- ^ a b Wolf, Richard (April 15, 2019). "F-word: Supreme Court struggles with law blocking trademark protection in cases of vulgarity". USA Today. Retrieved April 15, 2019.
- ^ a b Collins, Terry (June 24, 2019). "FUCT Clothing Can Now Get Trademark Protection, Supreme Court Rules". Fortune. Retrieved June 24, 2019.
- ^ Chung, Andrew (June 24, 2019). "Supreme Court allows foul language trademarks in F-word case". Reuters. Retrieved June 25, 2019.
- ^ de Vogue, Adrian; Sullivan, Kate (June 24, 2019). "Supreme Court says law banning registration of 'scandalous' trademarks violates First Amendment". CNN. Retrieved June 24, 2019.
External links
- Text of Iancu v. Brunetti, No. 18–302, 588 U.S. ___ (2019) is available from: CourtListener Justia Oyez (oral argument audio) Supreme Court (slip opinion)
Enumeration Clause of Section II |
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Qualifications Clauses of Sections II and III |
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Elections Clause of Section IV |
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Dormant Commerce Clause | - Brown v. Maryland (1827)
- Willson v. Black-Bird Creek Marsh Co. (1829)
- Cooley v. Board of Wardens (1852)
- Wabash, St. Louis & Pacific Railway Co. v. Illinois (1886)
- Swift & Co. v. United States (1905)
- George W. Bush & Sons Co. v. Malloy (1925)
- Baldwin v. G.A.F. Seelig, Inc. (1935)
- Edwards v. California (1941)
- Southern Pacific Co. v. Arizona (1945)
- Dean Milk Co. v. City of Madison (1951)
- Miller Bros. Co. v. Maryland (1954)
- Bibb v. Navajo Freight Lines, Inc. (1959)
- National Bellas Hess v. Illinois (1967)
- Pike v. Bruce Church, Inc. (1970)
- Hughes v. Alexandria Scrap Corp. (1976)
- Complete Auto Transit, Inc. v. Brady (1977)
- Hunt v. Washington State Apple Advertising Commission (1977)
- City of Philadelphia v. New Jersey (1978)
- Exxon Corp. v. Governor of Maryland (1978)
- Reeves, Inc. v. Stake (1980)
- Kassel v. Consolidated Freightways Corp. (1981)
- Sporhase v. Nebraska ex rel. Douglas (1982)
- White v. Mass. Council of Construction Employers (1983)
- South-Central Timber Development, Inc. v. Wunnicke (1984)
- Maine v. Taylor (1986)
- Healy v. Beer Institute, Inc. (1989)
- Quill Corp. v. North Dakota (1992)
- Chemical Waste Management, Inc. v. Hunt (1992)
- Oregon Waste Systems, Inc. v. Department of Environmental Quality of Oregon (1994)
- C&A Carbone, Inc. v. Town of Clarkstown (1994)
- West Lynn Creamery, Inc. v. Healy (1994)
- Granholm v. Heald (2005)
- United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority (2007)
- Department of Revenue of Kentucky v. Davis (2008)
- Comptroller of the Treasury of Maryland v. Wynne (2015)
- South Dakota v. Wayfair, Inc. (2018)
- Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019)
- National Pork Producers Council v. Ross (2023)
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Others | |
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Copyright Act of 1790 | |
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Patent Act of 1793 | |
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Patent infringement case law | |
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Patentability case law | |
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Copyright Act of 1831 | |
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Copyright Act of 1870 | |
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Sherman Antitrust Act of 1890 | |
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International Copyright Act of 1891 | |
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Copyright Act of 1909 | |
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Patent misuse case law | |
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Clayton Antitrust Act of 1914 | |
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Lanham Act | - Inwood Laboratories, Inc. v. Ives Laboratories, Inc. (1982)
- San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1987)
- Two Pesos, Inc. v. Taco Cabana, Inc. (1992)
- Qualitex Co. v. Jacobson Products Co. (1995)
- College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1999)
- Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001)
- TrafFix Devices, Inc. v. Marketing Displays, Inc. (2001)
- Dastar Corp. v. Twentieth Century Fox Film Corp. (2003)
- Moseley v. V Secret Catalogue, Inc. (2003)
- Lexmark International, Inc. v. Static Control Components, Inc. (2014)
- POM Wonderful LLC v. Coca-Cola Co. (2014)
- Matal v. Tam (2017)
- Iancu v. Brunetti (2019)
- Romag Fasteners, Inc. v. Fossil, Inc. (2020)
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Copyright Act of 1976 | - Zacchini v. Scripps-Howard Broadcasting Co. (1977)
- Sony Corp. of America v. Universal City Studios, Inc. (1984)
- Mills Music, Inc. v. Snyder (1985)
- Harper & Row v. Nation Enterprises (1985)
- Community for Creative Non-Violence v. Reid (1989)
- Stewart v. Abend (1990)
- Feist Publications, Inc., v. Rural Telephone Service Co. (1991)
- Fogerty v. Fantasy, Inc. (1994)
- Campbell v. Acuff-Rose Music, Inc. (1994)
- Lotus Dev. Corp. v. Borland Int'l, Inc. (1996)
- Quality King Distributors Inc., v. L'anza Research International Inc. (1998)
- Feltner v. Columbia Pictures Television, Inc. (1998)
- New York Times Co. v. Tasini (2001)
- Eldred v. Ashcroft (2003)
- MGM Studios, Inc. v. Grokster, Ltd. (2005)
- Reed Elsevier, Inc. v. Muchnick (2010)
- Golan v. Holder (2012)
- Kirtsaeng v. John Wiley & Sons, Inc. (2013)
- Petrella v. Metro-Goldwyn-Mayer, Inc. (2014)
- American Broadcasting Cos., Inc. v. Aereo, Inc. (2014)
- Star Athletica, LLC v. Varsity Brands, Inc. (2017)
- Fourth Estate Public Benefit Corp. v. Wall-Street.com (2019)
- Rimini Street Inc. v. Oracle USA Inc. (2019)
- Allen v. Cooper (2020)
- Georgia v. Public.Resource.Org, Inc. (2020)
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Other copyright cases | |
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Other patent cases | - Continental Paper Bag Co. v. Eastern Paper Bag Co. (1908)
- Minerals Separation, Ltd. v. Hyde (1916)
- United States v. General Electric Co. (1926)
- United States v. Univis Lens Co. (1942)
- Altvater v. Freeman (1943)
- Sinclair & Carroll Co. v. Interchemical Corp. (1945)
- Funk Bros. Seed Co. v. Kalo Inoculant Co. (1948)
- Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp. (1950)
- Graver Tank & Manufacturing Co. v. Linde Air Products Co. (1950)
- Aro Manufacturing Co. v. Convertible Top Replacement Co. (1961)
- Compco Corp. v. Day-Brite Lighting, Inc. (1964)
- Wilbur-Ellis Co. v. Kuther (1964)
- Brulotte v. Thys Co. (1964)
- Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp. (1965)
- Graham v. John Deere Co. (1966)
- United States v. Adams (1966)
- Brenner v. Manson (1966)
- Lear, Inc. v. Adkins (1969)
- Anderson's-Black Rock, Inc. v. Pavement Salvage Co. (1969)
- Zenith Radio Corp. v. Hazeltine Research, Inc. (1971)
- Gottschalk v. Benson (1972)
- United States v. Glaxo Group Ltd. (1973)
- Dann v. Johnston (1976)
- Sakraida v. Ag Pro Inc. (1976)
- Parker v. Flook (1978)
- Diamond v. Chakrabarty (1980)
- Diamond v. Diehr (1981)
- Bonito Boats, Inc. v. Thunder Craft Boats, Inc. (1989)
- Eli Lilly & Co. v. Medtronic, Inc. (1990)
- Markman v. Westview Instruments, Inc. (1996)
- Warner-Jenkinson Co. v. Hilton Davis Chemical Co. (1997)
- Pfaff v. Wells Electronics, Inc. (1998)
- Dickinson v. Zurko (1999)
- Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999)
- J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc. (2001)
- Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. (2002)
- Merck KGaA v. Integra Lifesciences I, Ltd. (2005)
- eBay Inc. v. MercExchange, L.L.C. (2006)
- Illinois Tool Works Inc. v. Independent Ink, Inc. (2006)
- LabCorp v. Metabolite, Inc. (2006)
- MedImmune, Inc. v. Genentech, Inc. (2007)
- KSR International Co. v. Teleflex Inc. (2007)
- Microsoft Corp. v. AT&T Corp. (2007)
- Quanta Computer, Inc. v. LG Electronics, Inc. (2008)
- Bilski v. Kappos (2010)
- Global-Tech Appliances, Inc. v. SEB S.A. (2011)
- Stanford University v. Roche Molecular Systems, Inc. (2011)
- Microsoft Corp. v. i4i Ltd. Partnership (2011)
- Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012)
- Kappos v. Hyatt (2012)
- Bowman v. Monsanto Co. (2013)
- Gunn v. Minton (2013)
- Association for Molecular Pathology v. Myriad Genetics, Inc. (2013)
- FTC v. Actavis, Inc. (2013)
- Alice Corp. v. CLS Bank International (2014)
- Akamai Techs., Inc. v. Limelight Networks, Inc. (2014)
- Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (2015)
- Kimble v. Marvel Entertainment, LLC (2015)
- Apple Inc. v. Samsung Electronics Co. (2016)
- TC Heartland LLC v. Kraft Foods Group Brands LLC (2017)
- Peter v. NantKwest, Inc. (2019)
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Other trademark cases | |
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Habeas corpus Suspension Clause of Section IX |
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No Bills of Attainder or Ex post facto Laws Clause of Section IX |
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Compact Clause of Section X |
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Public displays and ceremonies | |
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Statutory religious exemptions | |
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Public funding | |
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Religion in public schools | |
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Private religious speech | |
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Internal church affairs | |
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Taxpayer standing | |
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Blue laws | |
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Other | |
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Unprotected speech | Incitement and sedition | |
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Libel and false speech | |
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Fighting words and the heckler's veto | |
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True threats | |
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Obscenity | - Rosen v. United States (1896)
- United States v. One Book Called Ulysses (S.D.N.Y. 1933)
- Roth v. United States (1957)
- One, Inc. v. Olesen (1958)
- Smith v. California (1959)
- Marcus v. Search Warrant (1961)
- MANual Enterprises, Inc. v. Day (1962)
- Jacobellis v. Ohio (1964)
- Quantity of Books v. Kansas (1964)
- Ginzburg v. United States (1966)
- Memoirs v. Massachusetts (1966)
- Redrup v. New York (1967)
- Ginsberg v. New York (1968)
- Stanley v. Georgia (1969)
- United States v. Thirty-seven Photographs (1971)
- Kois v. Wisconsin (1972)
- Miller v. California (1973)
- Paris Adult Theatre I v. Slaton (1973)
- United States v. 12 200-ft. Reels of Film (1973)
- Jenkins v. Georgia (1974)
- Southeastern Promotions, Ltd. v. Conrad (1975)
- Erznoznik v. City of Jacksonville (1975)
- Young v. American Mini Theatres, Inc. (1976)
- Vance v. Universal Amusement Co., Inc. (1980)
- American Booksellers Ass'n, Inc. v. Hudnut (7th Cir. 1985)
- People v. Freeman (Cal. 1988)
- United States v. X-Citement Video, Inc. (1994)
- Reno v. ACLU (1997)
- United States v. Playboy Entertainment Group, Inc. (2000)
- City of Los Angeles v. Alameda Books, Inc. (2002)
- Ashcroft v. ACLU I (2002)
- United States v. American Library Ass'n (2003)
- Ashcroft v. ACLU II (2004)
- Nitke v. Gonzales (S.D.N.Y. 2005)
- United States v. Williams (2008)
- American Booksellers Foundation for Free Expression v. Strickland (6th Cir. 2009)
- United States v. Kilbride (9th Cir. 2009)
- United States v. Stevens (2010)
- Brown v. Entertainment Merchants Ass'n (2011)
- FCC v. Fox Television Stations, Inc. (2012)
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Speech integral to criminal conduct | |
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Strict scrutiny | |
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Vagueness | |
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Symbolic speech versus conduct | |
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Content-based restrictions | |
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Content-neutral restrictions | |
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Compelled speech | |
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Compelled subsidy of others' speech | |
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Government grants and subsidies | |
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Government as speaker | |
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Loyalty oaths | |
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School speech | |
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Public employees | |
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Hatch Act and similar laws | |
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Licensing and restriction of speech | |
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Commercial speech | - Valentine v. Chrestensen (1942)
- Rowan v. U.S. Post Office Dept. (1970)
- Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973)
- Lehman v. Shaker Heights (1974)
- Goldfarb v. Virginia State Bar (1975)
- Bigelow v. Virginia (1975)
- Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council (1976)
- Linmark Assoc., Inc. v. Township of Willingboro (1977)
- Carey v. Population Services International (1977)
- Bates v. State Bar of Arizona (1977)
- In re Primus (1978)
- Ohralik v. Ohio State Bar Association (1978)
- Friedman v. Rogers (1979)
- Consol. Edison Co. v. Public Serv. Comm'n (1980)
- Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
- Metromedia, Inc. v. San Diego (1981)
- In re R.M.J. (1982)
- Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
- Zauderer v. Off. of Disciplinary Counsel of Supreme Court of Ohio (1985)
- Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
- Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986)
- San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (1987)
- Shapero v. Kentucky Bar Association (1988)
- Riley v. Nat'l Fed'n of the Blind (1988)
- State University of New York v. Fox (1989)
- Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990)
- City of Cincinnati v. Discovery Network (1993)
- Edenfield v. Fane (1993)
- United States v. Edge Broadcasting Co. (1993)
- Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy (1994)
- Lebron v. National Railroad Passenger Corp. (1995)
- Rubin v. Coors Brewing Co. (1995)
- Florida Bar v. Went For It, Inc. (1995)
- 44 Liquormart, Inc. v. Rhode Island (1996)
- Glickman v. Wileman Brothers & Elliot, Inc. (1997)
- Greater New Orleans Broadcasting Assn., Inc. v. United States (1999)
- Los Angeles Police Department v. United Reporting Publishing Co. (1999)
- United States v. United Foods Inc. (2001)
- Lorillard Tobacco Co. v. Reilly (2001)
- Thompson v. Western States Medical Center (2002)
- Nike, Inc. v. Kasky (2003)
- Johanns v. Livestock Marketing Ass'n (2005)
- Tennessee Secondary School Athletic Assn. v. Brentwood Academy (2007)
- Milavetz, Gallop & Milavetz, P.A. v. United States (2010)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (2010)
- Sorrell v. IMS Health Inc. (2011)
- Expressions Hair Design v. Schneiderman (2017)
- Matal v. Tam (2017)
- Iancu v. Brunetti (2019)
- Barr v. American Association of Political Consultants (2020)
- Vidal v. Elster (2024)
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Campaign finance and political speech | |
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Anonymous speech | |
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State action | |
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Official retaliation | |
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Boycotts | |
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Prisons | |
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Organizations | |
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Future Conduct | |
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Solicitation | |
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Membership restriction | |
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Primaries and elections | |
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