What the F*ck Can I Name My Beer, Spirit, or Wine?Jul. 27, 2017
According to the Supreme Court Ruling on Trademark Law, It Doesn’t Matter!
In June 2017 the U.S. Supreme Court issued a ruling that prohibits the U.S. Patent and Trademark Office (PTO) in certain situations from rejecting potentially offensive trademark requests based on the grounds that it may be potentially disparaging. One issue that the court grappled with was whether trademarks are considered government or private speech. After concluding that trademarks are private speech, it was a no-brainer for the Court (which rendered a unanimous decision) that the PTO had no right to reject trademarks on the grounds that they may be offensive or disparaging.
The Supreme Court decision only addressed the portion of the Lanham Act authorizing the PTO to reject marks that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” There are other portions of the statute, however, that also prohibit “scandalous” or “immoral” marks, and these portions of the statute have not yet fallen by the wayside, although given the breadth of the Court’s decision, one suspects the PTO’s statutory authorization to reject trademarks on the grounds that they are “scandalous” or “immoral” is not long for this world.
This may open the door for breweries and distilleries that want to push the branding envelope. A number of trademarks over the years containing the word “fuck,” for example, have been refused on the grounds that the word is “scandalous and immoral.” We suspect that these sorts of refusals will no longer be authorized and will be deemed unconstitutional. This potentially opens the door for breweries and distilleries to go wild with the names they use on their products.
Breweries and distilleries, however, not only have to be concerned about the PTO, but also about the Tax and Trade Bureau (TTB) label approval process, and the TTB regulations still prohibit any statement or design which is “obscene or indecent.” Thus, even if you can get a trademark for your product that is obscene or indecent (however you choose to define those words), you may run into a problem when you seek a certificate of label approval from the TTB. As a brief aside, the TTB is occasionally more lenient than the PTO — it approved labels that say “Fuck Art This Is Advertising” and “Fuck Art Let’s Dance!” Under the new Supreme Court decision, these could arguably also obtain trademark registration.
While the Supreme Court holding could be readily applied to the TTB regulations concerning “obscene or indecent” names, we may have to wait and see: (1) whether anyone takes up that fight; (2) if the TTB, in light of the decision, ignores the regulation; or (3) if the TTB revises the regulations in light of the Supreme Court decision.
Some of these issues have previously played out at the state level. Flying Dog Brewery, for example, sued the State of Michigan and won the right to use its label for Raging Bitch Belgian-Style India Pale Ale on First Amendment (free speech) grounds despite the state’s initial refusal on the grounds that it was “detrimental to the . . . welfare of the general public.”
If the issue goes to court, we think the TTB restrictions on “obscene” or “indecent” labels would go away and/or have to be re-drafted to very narrowly apply only to labels that the government has a “compelling interest” in prohibiting.