Brunetti and the Tests of Tam

On Monday, April 15, 2019 arguments in the Brunetti case [Iancu v. Brunetti, No. 18-302] will be heard at the United States Supreme Court. Erik Brunetti seeks to register the mark FUCT for clothing. Brunetti’s application was rejected for registration by the United States Patent and Trademark Office on the basis that it violates the Lanham Act, 15. U.S.C. 1052(a) which prohibits the registration of marks comprised of “immoral” or “scandalous” matter. The arguments by the government and Brunetti are sure to echo some of the arguments made in the so-called SLANTS case, Matal v. Tam, 137 S. Ct. 1744 (2017), involving a trademark application for THE SLANTS as the name of a band. There the Court held that another portion of the same provision in question in Brunetti, that prohibiting the registration of marks that may disparage or bring into contempt or disrepute, any persons, living or dead, institutions, beliefs or national symbols, was unconstitutional.  In Matal v. Tam, the Court evaluated whether trademark registrations are government speech, subsidized speech, government program speech, or commercial speech, and applied the various tests applicable to restrictions on such types of speech to determine if the restriction violated the First Amendment. The Court found that the disparagement clause was unconstitutional. Key issues in the Brunetti case include whether the same viewpoint discrimination that was fatal to the disparagement clause applies to the so-called scandalous clause and, in any case, whether the clause’s prohibition against registration of scandalous or immoral marks is a content-based restriction on speech that is unconstitutional under the First Amendment, whether the level of scrutiny is strict or intermediate.

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