Fundamental rights: Trademark office or moral guardian?

The issues arising when IP law meets fundamental rights are the subject of evolving opinions and court reasonings in Europe and the US, as WIPR’s Rory O’Neill discovers.

Recent court decisions, such as Iancu v Brunetti in June 2019, which deal with the balance between free speech and IP law, highlight the challenge of striking the right balance between IP and fundamental rights.

The US Supreme Court delivered its highly anticipated verdict in a case that forced the judges to grapple with the implications of trying to balance morality, fundamental rights, and IP in one statute.

Iancu v Brunetti, a dispute over whether streetwear brand owner Erik Brunetti’s ‘Fuct’ mark was impermissible as “scandalous”, revived a fierce debate in the country, and in the court itself. At the heart of the case was what role public institutions, in this case the US Patent and Trademark Office (USPTO), should have in regulating and protecting morality.