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Immoral and Scandalous Trademark Clause gets “FUCT” by First Amendment

Dec 26, 2017

FUCT logo and apparel

This is not your grandmother’s trademark. At least for now, you may be able to trademark “immoral and scandalous” words as “FUCT.” The Federal Circuit Court of Appeals ruled that trademarks are a form of personal expression, even if used for commercial purposes like branding clothing. As such, they are protected by the First Amendment, and entitled to registration. You can read the opinion here:  Brunetti

The government has not yet filed any appeal. Nor has the PTO revised their examination guidelines. After the Supreme Court invalidated the Disparagement clause earlier this year, the PTO said this much:

Because the constitutionality of the scandalousness provision remains pending before the Federal Circuit in Brunetti, the USPTO continues to examine applications for compliance with that provision according to the existing guidance in the TMEP and Examination Guide 01-16.  Any suspension of an application based on the scandalousness provision of Section 2(a) will remain in place until the Federal Circuit issues a decision in Brunetti, after which the USPTO will re-evaluate the need for further suspension.

Until the decision trickles down the chain of command, the applications for “FUCT” and other pending “immoral and scandalous” trademark applications will remain in limbo. Follow the status of the guidelines at this link.  The decision comes 7 years too late for my colleague whose client tried to register JINER WEAR. It’s not often we trademark lawyers get to legitimately talk about sex. Mostly, it’s all about likelihood of confusion. Yawn. The question is, will the Patent & Trademark Office let this go? Or, will they ask the Supreme Court for the final word? With sexual harassment on everyone’s mind, it just might.

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