Trademark Law and Practice, Pages 157–161

In re Brunetti

United States Court of Appeals for the Federal Circuit, 2017

Facts:

Appellant applied for a trademark that was a phonetic twin of a highly offensive word. It was often used with offensive imagery and words. Consistent with the Lanham Act, his trademark was denied for being immoral.

Procedural History:

The Trademark Trial and Appeal Board affirmed.

Issue:

Is it constitutional for the government to prohibit immoral trademarks?

Reasoning:

  • Content-based statutes are presumed to be invalid. The government has not proved that this statue furthers a compelling government interest and is narrowly tailored to achieve it.
  • Because the offensive part of trademarks are expressive, not source-identifying, the prohibition targets expressive speech. This subjects it to strict scrutiny, which it undisputedly cannot survive.
  • Even failing this, the prohibition does not survive the intermediate scrutiny that commercial speech restrictions are subject to. This comprises a four-part test:
    1. It admittedly concerns lawful, non-misleading activity.
    2. It does not concern a substantial government interest.
      • The government does not have a substantial interest in promoting certain trademarks over others.
      • Its interest in protecting the public from off-putting marks is not a substantial interest that would justify broad suppression of speech.
      • The government does not have a substantial interest in protecting the public from the profane mark because registering it does not inherently foist it onto others nor make it more accessible to children.
    3. Even if it was a substantial interest, this does not directly prevent the applicants from using their marks unregistered.
    4. The inconsistency in the provision's enforcement makes it more extensive than needed regardless.

Holding:

No, it violates the First Amendment for the government to prohibit immoral trademarks. Reversed.

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