Iancu v. Brunetti — Lanham Act’s Ban on Immoral or Scandalous Trademarks Is Unconstitutional

Background

Erik Brunetti founded a streetwear brand in 1990 using a name that is a profane acronym — spelled out, the name contains a vulgarity. He applied to register the mark with the USPTO, which refused registration under Section 2(a) of the Lanham Act, which bars marks that are “immoral” or “scandalous.”

Following the Supreme Court’s 2017 decision in Matal v. Tam, which struck down the Lanham Act’s bar on “disparaging” marks, Brunetti argued the immoral or scandalous bar suffered from the same constitutional defect. The Federal Circuit agreed, holding the bar facially unconstitutional. The Supreme Court granted review.

The Court’s Holding

Justice Kagan, writing for a 6-3 majority on the core constitutional question, held that the immoral or scandalous bar violates the First Amendment because it is viewpoint-based discrimination. The bar does not simply exclude a category of speech based on content (like obscenity) — it distinguishes between marks that express conventional or accepted views versus those expressing offensive or taboo views. That kind of viewpoint discrimination by the government is unconstitutional.

The Court illustrated the point with examples: the USPTO had approved marks conveying positive views of drug use while rejecting marks conveying positive views of other illegal behavior; it approved marks with religious connotations while rejecting those that denigrated religion. This pattern of approvals and rejections revealed the government picking winners based on the message, not the category — precisely the kind of viewpoint favoritism the First Amendment forbids.

Key Takeaways

• The Lanham Act’s bar on “immoral or scandalous” marks is unconstitutional viewpoint-based discrimination under the First Amendment.
• The government cannot use trademark registration to favor marks expressing conventional views over those expressing unconventional or offensive views.
• Following Tam (2017) and Brunetti (2019), both the disparagement and immoral/scandalous provisions of Lanham Act §2(a) are invalidated.
• Marks that were previously rejected as scandalous — including profanity-based marks — are now eligible for registration.

Why It Matters

Together with Matal v. Tam, this decision substantially dismantled the USPTO’s authority to make content-based and viewpoint-based judgments about the appropriateness of trademark applications. The First Amendment principle that the government cannot favor one viewpoint over another in administering a benefit program applies with full force to trademark registration.

The practical impact is significant for edgy, provocative, and countercultural brands that previously faced registration barriers. But the ruling also raises legitimate concerns about the potential for federal trademark protection to attach to marks that are deeply offensive to many people. Congress may yet respond with more carefully tailored restrictions — the Court noted that a limit targeting genuinely obscene marks, as opposed to morally disapproved ones, might survive scrutiny.