Read the full article by Maxine Lynn at ean-online.com

A trademark is a name, logo, or symbol that a company uses to identify its goods and distinguish them from the goods of others. In the U.S., a federal registration system exists, managed by the U.S. Patent & Trademark Office (the “USPTO”), where companies can register their trademarks. Registering a trademark provides the owner with many significant advantages. For decades, though, U.S. law has excluded adult-oriented businesses from receiving those benefits because of a prohibition on registration of trademarks considered “scandalous” or “immoral.” Trademarks that have fallen to that fate include “AW SHIT,” as well as “DICK HEADS” having a design portion including a representation of male genitals. The sun, however, may finally be setting on this era.

It appears that a sweeping change may be coming in In re Brunetti because of a June 2017 decision by the U.S. Supreme Court in the case of Matal v. Tam. There, the highest court in the land struck down a law similar to §1052(a), but instead banning the registration of trademarks that are “disparaging” of a person, institution, or belief. The Court broadly reasoned that “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” If offensiveness of disparaging speech is not a ground for restricting a trademark, as held in Tam, then it would appear that such logic would also mean that trademarks considered “immoral” or “scandalous,” although offensive to some, are similarly not restrictable.

In light of this, companies in the adult entertainment industry should start to reexamine their brands and how they could potentially benefit from trademark registrations. Even in the unlikely event that the law does not change after In re Brunetti, companies should familiarize themselves with trademark registration processes as they may be applicable to trademarks under their brand’s umbrella which are not considered offensive.

Maxine Lynn is an intellectual property (IP) attorney with the law firm of Keohane & D’Alessandro, PLLC. She focuses her practice on prosecution of patents for technology, trademarks for business brands, and copyrights for creative materials. She publishes the Unzipped Sex, Tech & the Law blog at SexTechLaw.com.

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