Iancu v. Brunetti (18-302)
argument 18-302Iancu v. Brunetti
Supreme Court of the United States
56 min
6 speakers
8 chapters
transcribed 5 days ago
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Transcript generated automatically by AI and may contain errors.
What is the Lanham Act’s “scandalous” trademark provision and how does the government defend it?
We'll hear argument first this morning in case eighteen three oh
two, Yanku versus Brunetti. Mr. Stewart? Thank you, Mr. Chief Justice, and may it please the Court, the Lanamax ban on Federal registration of scandalous trademarks is not a restriction on speech, but a valid condition on participation in a Federal programme. On its face and as applied here, the provision is viewpoint neutral. The Scandalous Marx provision is one of many content based criteria for Federal trademark registration, and consideration of a marks content is essential to
tell me how you're defining scandalous marks. I from your brief I thought you were giving it a different definition than has been used by the agency for a while.
Well the the term the adjectives that have sometimes been used as synonyms for scandalous by the agency are terms like shocking, disgraceful, offensive, and disreputable. I think Well
if you use all those adjectives you run head on to TAM.
I I think one sense in which we have I think this has always been at the core of the prohibition, but I think TAM has led us to focus more on limiting the scope of those adjectives. That is, on their face, those adjectives could encompass material that is offensive or shocking because of the outrageous views that it expresses. And we know from TAM that viewpoint discrimination. That's viewpoint discrimination. It's not a valid basis for denial of federal registration. registration of a trademark. So I I think it has always been the PTO's focus, but from here on I believe it will be the exclusive focus on marks that are shocking or offensive because of the mode of expression, not because of the ideas.
How is that how is that determined that a substantial composite of the general public would find the m the mock shocking or offensive? I mean if considering what's involved in this case, if you were to take a a composite of say twenty year olds, do you think that that answer would be they would find it shocking? I I I think not. I think there are certainly some segments of society that are more likely to find particular marks uh shocking than others. I the the PTO, it its initial determination was that this mark would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of uh a well known word of profanity and perhaps the paradigmatic prof uh word of profanity in our language.
So why are you using a subjective standard? Why not just something like obscene? Vulgar. Even profane. But once you get to shocking offensive you get to viewpoint. One way or another it's always subjective. I I I c I can deal with a limiting principle that has its own substance like obscenity.
I I I would agree that if you just looked at the w words like shocking and offensive on their face and gave them their ordinary meanings, that they could easily encompass material that was shocking because it expressed an outrageous point of view or a point of view that most members of the M.
Mr. Stewart, if if you agree with that, I mean what are we supposed to be doing here? Are we supposed to be looking at the statutory words? Are we supposed to be looking at the fuller standards that the Federal Circuit gave to explain those words. Or are we supposed to be looking just at your commitments as to what you're doing going forward? I mean if you take the statutory words, they're very broad, they do include things that are offensive because of the ideas they express. So why isn't that just the end of the matter? And if if if Congress wants to pass a statute that's narrower, that's focused on vulgarity or profanity, then Congress can do that.
I think typically the Court would attempt to construe a Federal statute in a way that would render it constitutional rather than unconstitutional. And I think the Scandalous Marks provision is at the very least susceptible of a reading that would render it constitutional if the focus is on profanity, vulgarity, and we're not just talking about words, we're also talking about images, that trademarks can include images as well as words, and if the scandalous marks
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Chapters
8 chapters
1
What is the Lanham Act’s “scandalous” trademark provision and how does the government defend it?
0:00–7:24
2
How do the parties define “scandalous” and why is the definition controversial?
7:24–16:21
3
Why do the Justices argue that the provision may be viewpoint‑based discrimination?
16:21–23:23
4
Is the challenge to the statute facial or case‑specific, and what does that mean for the Court?
23:23–30:22
5
What governmental interests are cited for restricting profanity, vulgarity, or obscene marks?
30:22–35:45
6
How would a ruling on this case affect public‑forum advertising, such as on buses?
35:45–42:39
7
What standard (obscenity, profanity, or content‑neutral) should apply to trademark registration?
42:39–49:47
8
What are the broader implications of the Court’s decision for free speech and trademark law?
49:47–56:06