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April 19, 2019In the News

Schmitt quoted in "SCOTUS likely to overturn ‘scandalous’ TM ban: lawyers"

World Intellectual Property Review

The US Supreme Court is likely to overturn the ban on registering scandalous trademarks following oral arguments in Iancu v Brunetti yesterday, lawyers have told WIPR.

The US Patent and Trademark Office (USPTO) is appealing the decision of the Federal Circuit to permit registration of Erik Brunetti’s ‘Fuct’ streetwear mark, citing section 2(a) of the Lanham Act.

Marshall Schmitt, partner at Michael Best & Friedrich in Chicago, told WIPR that proceedings yesterday marked a “rare instance when the Justices who weighed in all appeared to be grappling with the same concerns about the statute”.

“The comments from the court evidenced a clear sentiment that the statute is likely overbroad and needs to be overturned,'' he said.

Schmitt indicated that the biggest challenge for the USPTO’s attorney was where the line should be drawn on what constitutes a “scandalous” mark, given the inconsistency with which the statute has been applied.

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