Immoral or Scandalous Marks: An Empirical Analysis

Abstract

This article reports the results of a systematic empirical study of how the Patent and Trademark Office has applied trademark law’s prohibition on the registration of immoral or scandalous marks. We conducted this study for an amicus brief we submitted to the U.S. Supreme Court in Iancu v. Brunetti, 139 S. Ct. 782 (Jan. 4, 2019) (No. 18-302). In that case, the Supreme Court is considering whether the immoral-or-scandalous-marks provision runs afoul of the First Amendment’s Free Speech Clause. Our study shows, from multiple vantage points, that the Patent and Trademark Office applies the immoral-or-scandalous prohibition in an arbitrary, inconsistent, and viewpoint-discriminatory matter. On the basis of these empirical findings, we conclude that the bar on the registration of immoral-or-scandalous matter violates the Free Speech Clause because of a lack of fit between the purposes of the provision and the provision as enforced. The Patent and Trademark Office’s inconsistent and arbitrary enforcement also indicates unconstitutional vagueness. This article is based on the brief we submitted.