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Remember “The Slants,” the Asian-American rock band who were denied a trademark because the U.S. Patent and Trademark Office (PTO) thought the band’s name was “disparaging”? In Matal v. Tam (2017), the Supreme Court unanimously struck down the Lanham Act’s anti-disparagement provision. (That also resolved the battle over the Washington Redskins’ trademarks.) Well, here we go again, this time with a related provision that prevents registration of “immoral” or “scandalous” marks. It doesn’t take much imagination to figure out what the clothing brand “Fuct” is going for, and the PTO decided it did not pass muster. The Federal Circuit struck down the relevant provision—as it had in Tam—and the Supreme Court again took the case. The government argues that it isn’t stopping Fuct from using its name, only declining to register it as a trademark. Under the First Amendment, should federal officials be making calls about what’s “scandalous” or “disparaging.” Ilya Shapiro, lead counsel of an amicus brief for the Cato Institute, P.J. O’Rourke, and other individuals and groups, is attending the April 15 argument and will share his thoughts afterwards.
Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
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