Trump DOJ Considering Challenging Brunetti Scandalous Mark Decision

In Brunetti, the Federal Circuit extended Matal v. Tam, 137 S. Ct. 1744 (2017) to further reject the Lanham Act’s restriction on registration of immoral or scandalous marks — finding the limitation to be an unconstitutional restriction of free speech. (In Tam, the Supreme Court found the restriction on registering disparaging marks to be unconstitutional.)

In this case, the USPTO is being represented by attorneys from the Department of Justice rather than the its own internal solicitors. The DOJ is considering requesting en banc rehearing and has now requested and received an extension to file its petition until February 12, 2018.

Following TAM, the Federal Circuit’s decision here almost has to be correct.  The one major caveat in my mind is the dicta statement that the PTO cannot even limit the registration of obscene marks.

We are all FUCT

 

8 thoughts on “Trump DOJ Considering Challenging Brunetti Scandalous Mark Decision

  1. 3

    “The one major caveat in my mind is the dicta statement that the PTO cannot even limit the registration of obscene marks.”

    That’s not an accurate statement of the CAFC holding. The majority held that § 2(a)’s bar on registering immoral or scandalous marks is an unconstitutional
    restriction of free speech. In other words, the court held that 2(a) is unconstitutional on its face, and therefore it is not merely dicta that the PTO cannot limit the registration of obscene marks.

    Judge Dyk, in his concurrence, argued that the court should adopt a narrowing construction that limits “immoral or scandalous” to obscene material. The majority disagreed, asserting that only Congress had the power to rewrite 2(a) so that it only precludes the registration of obscene material.

    The majority got it right–the court should not narrow 2(a) to only cover obscene marks. Congress can amend 2(a) to prohibit obscene marks, and such a restriction would likely be upheld.

    1. 3.1

      Could any restriction by Congress that is broader than “obscene” be upheld? Or is “obscene” the only term that is magically bulletproof?

      1. 3.1.1

        I doubt that even the word “obscene” is bulletproof.

        One only has to remember that the relative social mores of the day means that THAT word (“obscene”) itself has no fixed meaning. What would have been considered obscene in 1910, 1950, 1970, 2001, and today has five different meanings.

        If anything, the concept of Void for Vagueness may have at play – especially in consideration of any laws dealing with life, liberty or property (and that concept is simply not limited to criminal law).

        Which is more than likely why we see a current day effort to “reclassify” patents as being public rights instead of being property.

  2. 2

    The Department of Health and Human Services (HHS) announced Thursday it will create a new division under the Office of Civil Rights (OCR) responsible for investigating complaints filed by workers claiming that their employers have violated their religious rights. […]

    “We are saying, with the launch of this division, you do not need to shed your religious identity, you do not need to shed your moral convictions to be a part of the public square.”

    Great. I look forward to denying help to the fundie shirth0les who voted for Emperor Mangobrain, aka the lowest forms of animal life on the planet. And I look forward to the OCR leaping to defend my deeply held sincere convictions about how depl0rable these stains on humanity really are. No amount of suffering is too little for the xian dominionists. So it is written in my super holy book.

    What an awesome country!

    1. 2.1

      Not really the topic for a patent board, but since we are here… On this issue, the only name you need to know is Tyra Hunter.

      1. 2.1.1

        Yup. “Fine people.”

  3. 1

    Presumably the DOJ’s interest is driven by the current Department head’s desire to keep the government in the morality-regulation business?

    Otherwise I admit to being a bit baffled by this.

    I do agree with Dennis that “following Tam” (to the extent that’s possible for a rational person) leads more or less directly to the CAFC’s decision in Brunetti.

    The one major caveat in my mind is the dicta statement that the PTO cannot even limit the registration of obscene marks.

    Does the statute say anything at all about obscenity? It says that you can’t have a “scandalous” mark and “scandalous” is a much broader term. It’s the breadth of the restriction that creates the Constitutional issue, if I understand the Supreme Court’s “reasoning” correctly.

    What a mess.

    At least we can all be thankful that the The Slants are out there, diminishing the power of anti-Asian slurs with every soundfile they sell and proving to everyone that the shape of one’s eyes does not affect one’s ability to make incredibly cr@ ppy music.

    1. 1.1

      “following Tam” (to the extent that’s possible for a rational person)

      LOL – as if that were difficult to follow. At all.

Leave a Reply

Your email address will not be published. Required fields are marked *

 Notify me of followup comments via e-mail.

You can click here to Subscribe without commenting

Add a picture