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Supreme Court Trademark Update
On April 15, 2019, the Supreme Court heard oral arguments in Iancu v. Brunetti (Supreme Court docket no. 18-302). In this case, the Court is considering whether the Lanham Act’s prohibition on federal registration of “immoral” or “scandalous” marks is an improper restriction of free speech under the First Amendment. The Court recently ruled in Matal v. Tam, 582 U.S. ____, 137 S.Ct. 1744 (2017) that the prohibition on federal registration of “disparaging” marks such as racial slurs was unconstitutional. Will the Court strike down the USPTO’s refusal to register “immoral” or “scandalous” marks as also violating the First Amendment? A decision in the Brunetti case should be issued in a few months.
A copy of the oral arguments in Brunetti may be accessed at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-302_7k47.pdf.
Recently, a petition for a writ of certiorari was filed in Romag Fasteners, Inc. v. Fossil, Inc., et al. (Supreme Court docket no. 18-1233). In this case, petitioner Romag is asking the Supreme Court to consider whether a finding of willfulness is a prerequisite for an award of an infringer’s profits for trademark infringement, or if it is merely one factor to consider when determining a remedy. The circuit courts are evenly split on this issue, which may factor in the Supreme Court taking on this case.
The Romag petition may be accessed at https://www.supremecourt.gov/DocketPDF/18/18-1233/92520/20190320121338357_Romag%20Cert%20Petition.pdf.
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