IP vs Morality vs Free Speech: What the Fuct?

As some of you may have heard, the USPTO denied a trademark to Erik Brunetti’s “FUCT” line of apparel on grounds that the mark was immoral/scandalous! The Court of Appeals for the Federal Circuit (CAFC) ruled that the refusal was unconstitutional since it violated the constitutional guarantee of free speech. The US government appealed and the US Supreme Court just granted cert and will hear arguments soon.

As Dennis Crouch notes in Patently O:

“..the Federal Circuit sided with Brunetti — holding the statute unconstitutional as contrary to the Free Speech provision of the First Amendment.  In its decision, the court followed the Supreme Court’s lead in Matal v. Tam, 137 S. Ct. 1744 (2017). In Tam, the Supreme Court addressed disparaging marks — also prohibited under Section 2(a) — finding that the prohibition on registration to be contrary to free speech rights.  The Government then petitioned the Supreme Court to review the case, and the court has now granted certiorari with the direct question:

“Whether Section 1052(a)’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the Free Speech Clause of the First Amendment.”

So we’re back to the IP vs “morality” issue again. And in this context, “free speech” as well. An issue of increasing importance to India, given that the Delhi high court once again endorsed the view that even corporations have the right to free speech (“commercial” speech) under the Constitution. This was a dispute pertaining to comparative advertising and alleged disparagement (Horlicks vs Complan).

But then again, as I asked in a previous post, should IP offices decide what is moral and what is immoral? Particularly IP offices in developing countries such as India which are strained for resources and struggle to get even regular IP registrability issues right. For an interesting discussion on these issues, see our previous posts here and here.  Prarthana’s post in particular takes you back to an exciting debate on this point between Justice Gautam Patel and Professor Josh Sarnoff (though largely limited to the issue of copyright and content censorship). And on that note, SpicyIP wishes all of its readers a wonderful new year.

ps: Image from here.

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