The Lanham Act held back scandalous and offensive trademarks for over 70 years, but the recent case of Iancu vs. Brunetti may open the floodgates. In this case, the Supreme Court of the United States determined that restricting these trademarks restricts free speech. With this decision, the USPTO can no longer deny trademark registration due to offensiveness. Does this mean we are going to begin seeing more and more vulgar trademarks?
There can be no denying that there is an appeal to having somewhat edgier trademarks. By tip-toeing (or completely crossing) the line of decency, brands can become infamous. Also, by making many of us chuckle at their name, they become immediately memorable. Friends You Can’t Trust (FUCT)’s brand name stands out, and, after the notoriety it gained during this case, we can expect many more following in its footsteps. With Iancu vs. Brunetti, the USPTO won’t be able to stop them.
At the same time, we must ask if they’ll really become as mainstream as we expect. While some brands will seek to be edgy, in general, people are not as comfortable with offensive words as the internet may lead us to believe. For a brand to gain larger acceptance, going with a more PG-rated name is a wiser decision. So, don’t expect their to be that large of a wave of serious vulgar trademarks.
Also, we must wonder how long will this new Wild West last? What is the likelihood that new rules and regulations will be put in place, skirting the SCOTUS decision? When approached with this question, George Chaclas, Partner at Burns & Levinson LLP commented,
“Going forward, a revised standard could be created and probably hold up – but it will take time, if at all. We have a slew of candidates running for the Democratic nomination and morality is often a central theme. Maybe as the candidates search to differentiate themselves, one of them will pick up on this issue on the campaign trail to raise its profile. If not, I expect the interested parties (e.g., the USTPO, marketers, and trademark attorneys) to wait and see how it plays out before working on writing up and enacting a more restrictive solution that would likely be subject to similar challenges again in the future.”
It seems this issue might be open season for trademarks in the United States – but what about in the international arena? Companies with international appeal will want to trademark their brand abroad and this is where it will get tricky. As Chris Sgourakis Principle of Griffith Hack in Australia pointed out that, “Free speech is not a guarantee in other countries. In Australia, for instance, Section 42(a) of the Trademarks Act of 1995 states that trademark applications must be rejected if they are scandalous or contrary to law. Many other countries include similar restrictions similar to the Trademark Act and the US Lanham Act. Yet, with no guaranteed free speech, it is unlikely that a brand could take on these regulations outside the US.”
So, if you’re in the US, expect to see a few more offensive trademarks, but there likely won’t be many serious registrations. It won’t be relevant for most brands, and as our experts pointed out, potential future regulations and laws outside the US could put a damper on them.