What’s Going to Follow Brunetti?

The US Supreme Court has, as you’ve doubtless read a million articles about already, struck down the Section 2(a) bar on registration of “immoral [] or scandalous matter.” Iancu v. Brunetti, ___ U.S. ___ (2019). It was no surprise to anyone who had read Matal v. Tam, the 2018 decision finding the 2(a) bar on disparaging matter to be unconstitutional. 582 U.S. ___ (2017).

This blog post will take a more practical look at what applications will be impacted, using TM TKO’s searchable issue tagging.

More than five hundred applications that are currently suspended based awaiting issuance of the Brunetti decision. The following numbers show the common terms that have resulted in suspensions, and include more easily-searched spelling variations.

Fuck and variants – 173

Shit and variants – 59

Breast-related – 16

Penis-related – 71

Vagina-related – 36

Butt-related – 17

Quite a few more related to specific sex acts, although there’s too much variation for easy enough searching for the purposes of this blog post.

A bit under half of the suspended applications do not have counsel; those applicants represented by counsel were somewhat more likely than the unrepresented applicants were more likely to have multiple applications suspended awaiting the Brunetti decision.

There does not appear to have been a land rush to file new applications for offensive – yet. Application data can take a few days to a week to filter into the USPTO data set, so it’s possible that there has in fact been a profane land rush that will become apparent over the next few days.

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