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Offensive Mark Owners Have An Enforcement Problem, Yvette Joy Liebesman

All Faculty Scholarship

In Iancu v. Brunetti, the Supreme Court held that the Lanham Act 2(a) bars for "immoral" or "scandalous" marks are facially unconstitutional viewpoint discrimination, and thus violate a trademark owner’s First Amendment rights. Brunetti, as well as its predecessor, Matal v. Tam, focused entirely on how the government might generate viewpoint discrimination at the point of trademark registration. The Court did not consider whether enforcement of trademarks—via courts of law, Customs and Border Protection, or the International Trade Commission—is government speech, and thus exempt from First Amendment free speech scrutiny. Yet the Court’s seminal holding of Shelley v. Kraemer illustrates …