In April at oral argument, the bench grappled with the issue of viewpoint discrimination based on the literal meaning of the statute and the genuine concern that without regulation, profane and obscene language and images will be imprinted with the ®.
Ultimately, in a unanimous decision, the court held that the statutory language restricting scandalous and immoral speech as drafted and currently interpreted was unconstitutional. The practical implications of the ruling were not considered. Several members of the court considered that there was a possible fix in a limited construction that could satisfy constitutional challenge. However, the majority of the court held that the statute as worded is facially unconstitutional viewpoint discrimination, and that there was no “fix.”
The government’s position that it would interpret the statute in a viewpoint neutral manner was entirely discounted by the majority, holding that the statute was unambiguous and requires Congressional consideration rather than a judicial reinterpretation based on the government’s assurance of a viewpoint neutral review.
The majority ruling was short and straightforward, but many questions still remain. The court still would not opine on whether trademarks are commercial speech. The court signaled it would entertain a more narrowly drawn restriction that was limited to particular words, but gave no direction on what that would be.
Moreover, can Congress agree to and legislate such a list of words? Finally, assuming that a new statutory restriction was enacted, without any direction could such a list pass constitutional muster on further review?
At oral argument, the government indicated that it was withholding further examination of marks that include the “N” word. What we do know is that those “marks” and others similarly abhorrent will now be approved and published. What will the Trademark Gazette look like going forward?