Fitzpatrick Case Alert
December 15, 2017
On December 15, 2017, a three-judge panel of the Court of Appeals for the Federal Circuit held that although the mark “FUCT” comprises immoral or scandalous matter, it is still federally registrable because Lanham Act Section 2(a)’s bar on registering such marks is an unconstitutional restriction of free speech, thereby violating the First Amendment. This decision is similar to the Supreme Court’s recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017), which held that Section 2(a)’s bar on the registration of disparaging marks was likewise an unconstitutional restriction of free speech. Within only a few months, the scandalous, immoral and disparaging mark bars have been chipped out of Section 2(a) of the Lanham Act.