The US Supreme Court ruled on 24 June that the Lanham Act's ban on immoral or scandalous trademarks violates the First Amendment because it disfavours certain ideas, the ABA Journal reports.

Justice Elena Kagan wrote the majority opinion, which was supported unanimously by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A Alito Jr, Neil M Gorsuch and Brett M Kavanaugh.

F-word

At the centre of the case was the initial denial of a trademark for a clothing brand that featured an alternative spelling of the F-word, ‘FUCT’. The brand is made and owned by clothing designer and artist Erik Brunetti. The Supreme Court found in favour of the clothing brand. 

Justice Kagan noted the US Supreme Court ruling in Matal v Tam (2017), which had found that the Lanham Act’sban on ‘disparaging’ trademarks violated the First Amendment because of discrimination on the basis of viewpoint. The ban on immoral or scandalous trademarks violated the First Amendment for the same reason, Justice Kagan said. 

She added that the legislation’s ban on immoral and scandalous trademarks had the effect of “inducing societal nods of approval”, or disapproving those that “provoke[ed] offence and condemnation”. 

Trademarks banned

Several trademarks had been granted or refused under the ‘immoral and scandalous’ standard. These included the US Patent and Trademark Office’s rejection of drug-related trademarks such as ‘You can’t spell healthcare without the THC’ for pain-relief medication (THC is the principal psychoactive constituent of cannabis). Also rejected was ‘Ko Kane’ for a beverage. But the office had approved ‘Say no to drugs -- reality is the best trip in life’. 

Also banned was the religious-reference trademark ‘Madonna’ for a wine, but the office had approved ‘Jesus died for you’ on clothing. Trademarks reflecting support for al-Qaida had been prohibited, but a trademark for a war-on-terrorism memorial had received the green light. 

Offensive opinions

Justice Kagan said that the decisions had been understandable, since they rejected opinions that many Americans found offensive. But, as Matal v Tamhad made clear, a law that disapproved of ideas discriminated on the basis of viewpoint – and this was in violation of the First Amendment. 

“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), she said, “and the Lanham Actcovers them all. It therefore violates the First Amendment.” 

In a concurring judgment, Justice Alito wrote: “At a time when free speech is under attack, it is especially important for this court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.”