On December 15, 2017, the Court of Appeals for the Federal Circuit struck down as unconstitutional the clause within 15 U.S.C. § 1052(a) (“Section 2(a)”) banning registration of a trademark that “[c]onsists of or comprises immoral…or scandalous matter.”

The In re Brunetti decision came in the wake of Matal v. Tam, a recent Supreme Court case holding that Section 2(a)’s ban on registering “disparaging” trademarks amounts to unconstitutional viewpoint discrimination.

Federal Circuit Judges Dyk, Moore and Stoll concluded that the refusal to register trademarks consisting of immoral or scandalous matter necessarily bans speech based on content, in violation of the First Amendment. Such content-based restrictions are subject to strict scrutiny review, which requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.