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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Profane trademarks are protected free speech, court rules

Many entrepreneurs in Colorado and across the United States want to protect their ideas and the unique labels they have created for them through the trademark process. It can provide specific protection for a business name, and a memorable one can be a huge part of any company’s marketing plan. Filing for a trademark can involve significant preparation and concern about meeting various laws and regulations that govern the process.

Now, the U.S. Court of Appeals for the Federal Circuit has ruled that bars to the use of profanity in trademarks are an unconstitutional violation of free speech. One trademark that sounds like the past tense of a profane word prohibited by the 1946 Lanham Act had been denied by the U.S. Patent and Trademark Office. That trademark has been reinstated and the decision lays a significant ground for the consideration of future ones that may be considered profane or offensive.

The court’s ruling noted that the First Amendment protects expression, including that which is offensive. In addition, it said that the rule had been applied unevenly in the past and other allusions to profanity had been approved previously. Fundamentally, however, the court affirmed that the government cannot claim any substantial interest in protecting the public from profane trademarks. The ruling was related to an earlier decision of the U.S. Supreme Court, which struck down another clause of the Lanham Act that had barred trademarks that could be seen to disparage an ethnic group. This restriction was also viewed by the court as an unlawful restriction on First Amendment rights to freedom of speech.

Business owners planning to launch products or services with unique names should consider the protection of their intellectual property when gearing up to market or introduce an idea. Intellectual property can be some of a company’s most valuable assets, and a lawyer can often provide important advice in this regard.

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