Supreme Court Upholds Scandalous Trademarks, Supports First Amendment

Iancu v. Brunetti
Supreme Court of the United States of America
Case No. 18-302
Opinion June 24, 2019

On Monday, June 24, 2019, the Supreme Court struck down the Lanham Act ban on the registration of “immoral” or “scandalous” trademarks. The Court held, 6-3, that this Lanham Act prohibition was in violation of the First Amendment.

The decision ruled for Erik Brunetti, the founder of clothing brand “Fuct.” This decision means names of video games can now extend into this “scandalous” domain. Publishers now have more discretion to give their games lewd names and they will get federal protection for this name. While before it was possible to name a game anything a publisher wanted as well, they previously could not receive federal protection for it. However, the market will likely play the pivotal role with regard to this new allowance. Most consumers probably do not actually want to buy games with immoral or scandalous names so a flood of new games with obscene names likely will not come to pass. While some online video game marketplaces catering to Indie developers and the Steam marketplace itself may find a home for new obscenely named games, the likely impact of this ruling will not be fully realized because of the power of the market.

It will be interesting to see how the video game industry reacts to this ruling as the field of available trademark registrations has now expanded in theory, but the actual impact may be relatively slight, because at the end of the day consumers might not respond as well to a scandalous mark as one that is a bit more family friendly.

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