For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection—the bars to “immoral” and “scandalous” marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could “disparage” others. The Court reasoned that to disparage is to offend, and the ability to offend is a core First Amendment value. So in the wake of Brunetti and Tam, the public must now be exposed to marks that employ highly offensive expression. Racial epithets, the F-word, and pornography are now more likely to appear as brands. And as time passes, businesses will gain confidence that such emotional attention-grabbing expressions will continue to be eligible for trademark protection. More businesses will begin to invest in them. The public, in turn, will be subject to a commercial experience that is more offensive and less inviting.
Congress must therefore act. Congress must bar trademark registration for the specific categories of vulgar, profane, and obscene language. Unlike the bars in Brunetti and Tam, these bars would not violate the First Amendment. They would target modes of expression—offensive methods of communication that invoke emotive force. The offensiveness of the communication derives not from any idea contained in a mark, but from the particular language employed. That distinction makes a constitutional difference. Modes of expression can be restricted in certain circumstances, such as the trademark context: the restriction furthers the trademark purpose of creating a commercial environment that is inviting to consumers. Congress may and should deny protection.
Ned Snow, Immoral Trademarks After Brunetti, 58 Houston L. Rev. 401 (2020).