St. Louis Partner Ben Clark authored an article published May 17 by Law360 concerning the possible constitutional impact of “naughty” trademarks. The U.S. Supreme Court is currently considering Iancu v. Brunetti, which involves the respondent’s failed attempt to register his “Fuct” trademark with the U.S. Patent and Trademark Office.
“In the end, the government's strongest point is: Where does it all stop?” Clark asks. “Can virtually any word or image, no matter how coarse or offensive, be vested with federal trademark rights without governmental restriction (except perhaps those deemed obscene under Miller v. California)? Or does the USPTO’s willy-nilly granting of registrations for words and images similar to those it sometimes rejects lead inevitably to the conclusion that the immoral/scandalous restriction is unconstitutionally vague and has not been ‘carefully tailored’ to further a legitimate governmental interest? It is difficult not to conclude that the restriction of vulgar or slurring content will only decrease as the courts and, likely, the federal legislature, struggle with articulating restrictions that pass constitutional muster.”