The Lanham Act prohibits registration of marks that are defamatory, scandalous or immoral.  Last month, in In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) (en banc), the Federal Circuit ruled that Section 2(a) of the Lanham Act, which prohibits registration of “disparaging” trademarks, is unconstitutional.  

The Federal Circuit is currently considering an appeal over registration of the mark “FUCT”, which was rejected by the U.S. Patent and Trademark Office (“USPTO”) as being “scandalous or immoral.”  In part, the Applicant argued that prohibition of the registration of scandalous marks under Section 2(a) of the Lanham Act is unconstitutional.  Following the decision in In re Tam, attorneys for the USPTO argued that “although a court could draw a constitutionally significant  distinction” between marks that are disparaging versus marks that are scandalous or immoral under Section 2(a) of the Lanham Act, the USPTO does not believe “there is any longer a reasonable basis in this Court’s law for treating them differently.”  Attorneys for the USPTO, however, reserved the right to argue that the ban on registration of scandalous and immoral marks could survive a constitutional challenge.

In re Brunetti, Case No. 15-1109, (Fed. Cir. filed November 6, 2015).