Limitations of the 1st Amendment in Trademark Cases: the Dog Toy Case

1st amendment likelihood of confusion section 2(d) trademark

Reviewing the last U.S. Supreme Court 2022 term, the highest court decided several high-profile cases involving intellectual property rights.  The keyword among these cases – two trademark, one copyright, and one patent – is “limitation.”  What does this mean?  The various laws implicated by these opinions do not operate in a vacuum and work in …

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That Sucks! Otherwise Generic gTLD Still Non-Registrable Because Not Attached with Preceding Domain Name

1st amendment distinctiveness failure to function genericism trademark

On February 2, 2022, the Court of Appeals for the Federal Circuit affirmed in In re Vox Populi Registry Ltd.,[1] the decision of the USPTO’s Trademark Trial and Appeal Board (TTAB) refusing registration to .SUCKS as a service mark for Vox’s domain name registry services. However, the Fed Circuit agreed with the TTAB in that …

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SCOTUS Watch: Bar on Immoral and Scandalous Marks Violates First Amendment

1st amendment scotus watch section 2(a) trademark

On June 24, 2019, the U.S. Supreme Court handed down Iancu v. Brunetti,[1] dealing with the Lanham Act’s Section 2(a) bars to trademark registration’s collision against the First Amendment brick wall; the Justices in a 6-3 vote struck down the immoral and scandalous clause of §2(a) in a somewhat mixed-up and divided Court.  Brunetti is …

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Fed Circuit Watch: Lanham Act Section 2(a) Scandalousness Clause Deemed Unconstitutional

1st amendment fed circuit watch section 2(a) trademark

On December 15, 2017, the United States Court of Appeals for the Federal Circuit handed down its decision in In re Brunetti.[1]  In Brunetti, the Federal Circuit panel, consisting of Judges Moore, Stoll, and Dyk, held that although the FUCT trademark contained immoral or scandalous matter, it remained federally registrable as a trademark because of …

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