Benjamin Appelbaum, Attorney at Law

Trademark case strikes down language restrictions

Trademark hopefuls in New Jersey may be interested in a trademark case decided in December 2017 that struck down some restrictions on obscene or offensive speech used in trademarks. The case played out as a contest between First Amendment rights and the obligation the government has to protect the population from offensive speech. In this instance, the First Amendment seems to have won the day.

The case focused on a particular trademark application that was denied under the law because it contained the word 'Fuct," which bears a close phonological resemblance to a word the majority of people would consider vulgar and offensive. The argument in favor of allowing the trademark indicated that the government does not have an interest in protecting the public from such words used in trademark applications. Individuals have a right to print and use such language, just as the general population has a right to see or hear it at their discretion. The trademark database is not to be considered a public forum where the government needs to censor the language for public view.

The ruling seems to be heavily influenced by a Supreme Court case heard in June of 2017 where the court ruled in favor of an Asian-American rocker who wanted to trademark the name of his band, The Slants. In that case as well, the name of the trademark could be considered an offensive racial slur. This demonstrates how recent court precedent can have a strong influence on the outcome of future cases, sometimes turning them completely around.

The outcome of both trademark cases sets a powerful precedent for the future of trademark laws and the usage of potentially offensive language. It also goes to show that Trademark Law is flexible and can see dramatic changes if it is challenged in the right way. The denial of a trademark application is certainly not the end of the road.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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