Cannata, Misiti and Smirti File another Amicus Brief with U.S. Supreme Court

February 27, 2019 | Intellectual Property

On February 26, Mike Cannata, Frank Misiti, and Steve Smirti filed an amicus brief with the U.S. Supreme Court as counsel of record for the New York Intellectual Property Law Association in a case styled Iancu v. Brunetti.  The case addresses the constitutionality of the provision of the Lanham Act which prohibits the federal registration of immoral or scandalous trademarks.

The case is currently before the U.S. Supreme Court based on a decision by the Federal Circuit which concluded that, while substantial evidence supported the finding that the trademark FUCT was vulgar, the federal law that prohibits the registration of such marks was unconstitutional.

The brief advanced several points, including:

  1. that the federal law which prohibits the registration of immoral or scandalous marks discriminates based on viewpoint and, as a result, is presumptively unconstitutional; and
  2. even if the law is constitutional, the Court must clarify whether a trademark owner that has been refused registration of an immoral or scandalous trademark can, nevertheless, seek to enforce its common law rights in that mark under a false designation of origin theory.

This is the second amicus brief our partners filed in the U.S. Supreme Court on behalf of the New York Intellectual Property Law Association in the last two months.

To read the amicus brief, click here.

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