In the wake of the Supreme Court’s Matal v. Tam decision, which struck the disparagement clause from Section 2(a) of the U.S. Trademark Act on First Amendment grounds, applicants filed to register trademarks that previously would have been refused under the provision.
Section 2(a)’s scandalous/immoral bar is on the verge of a similar fate – the Court of Appeals for the Federal Circuit (CAFC) held the prohibition to be an unconstitutional restriction on free speech. See In re Brunetti, Case No. 2015-1109 (Fed. Cir. Dec. 15, 2017). The U.S. Patent & Trademark Office (USPTO) has not announced whether it will seek judicial review of the Brunetti decision or begin approving scandalous marks for publication.
On June 19, 2017, the day the Supreme Court issued its opinion in Tam, an entity brashly named “Snowflake Enterprises, LLC” filed an application to register the term NIGGA for various clothing items. Five days later, it filed to register this swastika symbol: for “Fabrics that may or may not have printed patterns and designs thereon for use in textile applications, namely, the manufacture of apparel, upholstery, signage, flags, banners and wallpaper.” Two more trademark applications for NIGGA followed, covering (1) beer and various non-alcoholic beverages and (2) wine, vodka and other spirits and alcoholic beverages.