Iancu v. Brunetti: Decision of the Supreme Court 24 June 2019 – Case No. 18-302 (Iancu v. Brunetti, 588 U.S. ___ (2019))

The Lanham Act’s prohibition on registration of “immoral or scandalous” trademarks discriminates on the basis of viewpoint and thus violates the First Amendment. In Matal v. Tam , 582 U.S. ___, the U.S. Supreme Court found that if a trademark registration bar is viewpoint based, it is unconstitutional as it violates the First Amendment. The Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. The Lanham Act further allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. The statute thus, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint-discriminatory application. The statute is not susceptible of a limiting construction that would remove its viewpoint bias. The statutory bar cannot be narrowed to marks that are offensive or shocking because of their mode of expression, independent of any views that they may express because the statute says something markedly different. The “immoral or scandalous” bar does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. To cut the statute off is not to interpret the statute Congress enacted, but to fashion a new one. And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated.