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Wiley Rein Files Supreme Court Amicus Brief for Rutherford Institute in First Amendment Trademark Case

March 26, 2019

Washington, DC—Wiley Rein has filed an amicus brief on behalf of The Rutherford Institute in an important First Amendment trademark case that the U.S. Supreme Court will hear next month. The brief was filed March 25 in support of the respondent in Iancu v. Brunetti, which tests the constitutionality of the Lanham Act’s ban on registration of “scandalous” trademarks.

Megan L. Brown, partner in firm’s Appellate Practice, is Counsel of Record to The Rutherford Institute. The Wiley Rein team also includes Scott B. Wilkens, partner in the Appellate and Intellectual Property practices; Christopher Kelly, chair of the Trademark Practice; and Wesley E. Weeks, associate in the Appellate and IP practices.

The Supreme Court case, scheduled for oral argument April 15, stems from the U.S. Patent and Trademark Office’s (PTO) refusal to grant a trademark registration to a clothing line on the grounds that the brand name – which sounds like a word considered to be profane – would violate the Lanham Act’s scandalous-marks provision.

The U.S. Court of Appeals for the Federal Circuit overturned the PTO decision in 2017, ruling that the scandalous marks provision is unconstitutional. The amicus brief urges the Supreme Court to affirm the Federal Circuit ruling.

“Trademark registration cannot be used to burden speech in an effort to shield the public from offense,” Wiley Rein argued in the brief. “This is anathema to the First Amendment.”

To read the amicus brief, click here.