Mores and the Patent and Trademark Office

The Supreme Court has taken up the case of Iancu v Brunetti and heard oral arguments Monday.  Erik Brunetti wanted a copyright on the label for a clothing line of his that he’d named FUCT, an acronym for Friends U Can’t Trust.  Iancu is Andrei Iancu, who is duel-hatted as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.  Wearing that second hat, Iancu and his fellow USPTO bureaucrats said they were scandalized and morally offended, and they denied Brunetti’s copyright application.  The Wall Street Journal, at the link, said

On [last] Monday the Justices will consider whether to broaden First Amendment protection to trademarks that offend moral sensibilities.

More correctly, though, whether the Justices recognize this or not, they’ll be considering whether to protect trademarks that offend the particular sensibilities of a few Government bureaucrats.

What constitutes scandalous is inherently subjective and depends on cultural mores….

This, on the other hand, is overbroad. Again, what constitutes scandalous behavior (what is scandalism?) in Government permitting doesn’t depend on cultural mores so much as it depends on the mores of a few Government bureaucrats and on how those bureaucrats choose to interpret what they personally view as the nation’s cultural mores.

It’ll be instructive if Brunetti doesn’t get a unanimous favorable ruling.

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  1. Pingback: Censorship in the Patent and Trademark Office | A Plebe's Site

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