MARTIN SCHWIMMER QUOTED BY BLOOMBERG LAW ON SCANDALOUS TRADEMARKS

Marty Schwimmer was quoted in an article in Bloomberg Law’s BNA IP section on the Department of Justice’s arguments in In re Brunetti, in which the Government argues that the recent holding in Matal v. Tam, which strikes down the disparagement clause of the Lanham Act, would not apply to the ‘scandalousness’ clause of the Lanham Act. The Government argued that a mark such as FUCT for clothing would not be registrable. The Government seeks to distinguish the Tam holding that a disparaging mark such as THE SLANTS is registrable because the First Amendment bars the government from denying a government right based on a viewpoint, by citing Supreme Court cases that vulgar speech does not express a viewpoint, it is merely vulgar. Marty noted that such a sweeping proposition is not accurate. Writers such as Henry Miller and comedians such as Lenny Bruce and George Carlin deliberately used vulgarity to express a viewpoint on language and propriety.