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.