opinion

A Look at ‘Morality Clauses’ in IP Laws Around the World

A Look at ‘Morality Clauses’ in IP Laws Around the World

If you’re in the adult industry, you’ve probably heard the recent big news of the U.S. Supreme Court striking down the ban on “immoral” and “scandalous” trademarks. This now unenforceable law is what is referred to as a “morality clause.” The decision is a big win in the U.S., but prohibitions still exist in the patent and trademark laws of many countries around the world.

The Paris convention is an international treaty adopted in 1883. It sets out rules that apply to patent, trademark and other forms of intellectual property (IP) law. The rules define processes such that nationals of one signatory country can get the benefit of IP protection in other signatory countries. Article 6B of the Paris Convention recites, in pertinent part:

Laws denying intellectual property protection based on morality make doing business difficult and uncertain in pleasure products and porn.

1. Trademarks covered by this Article may be neither denied registration nor invalidated except ... when they are contrary to morality or public order…

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), effective as of 1995, is another international legal agreement — this one among the member nations of the World Trade Organization (WTO). It lays out minimum standards for the regulation by national governments of various types of IP as applied to nationals of other WTO member countries. Article 27 of the TRIPS Agreement recites, in pertinent part:

2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect public order or morality…

Accordingly, these international treaties allow governments to deny intellectual property protection to inventions (tech) and trademarks of an “immoral” nature.

Focusing our lens first on trademark law, as mentioned earlier, here in the U.S., until just a couple of months ago, there was a ban on registration of “scandalous” and “immoral” trademarks. In the case of Iancu v. Brunetti, the U.S. Patent & Trademark Office (USPTO) declined to issue Eric Brunetti a trademark registration for the term “FUCT,” as applied to an apparel line.

The decision in that case from the highest court in the land opened up a new landscape, allowing even sexually explicit marks to benefit from U.S. federal trademark registration.

Across the Atlantic Ocean, our friends in the European Union are still dealing with such laws. Article 7(1)(f) of the European Union Trade Mark Regulation provides that trademarks shall not be registered if they are “contrary to public policy or to accepted principles of morality.” In September of 2015, the European Intellectual Property Office (EUIPO) denied a trademark registration for the name of one of the country's most successful movie franchises. Constantin Film Produktion GmbH had filed an application to register "Fack Ju Goehte" for a film and respective merchandise. The EUIPO Fifth Board of Appeal and the General Court upheld the decision that the mark is too similar to a “vulgar” English phrase.

The case is on appeal. At the time of submission of this article for publication, a decision has not yet been delivered. However, on July 2, Advocate General, Michal Bobek, issued an opinion (though non-binding) arguing that the court decisions to decline registration should be set aside and annulled. In the opinion, he stated, “… although it is not a primary goal of trade mark law, freedom of expression clearly remains present therein.” He went on to also note, “the protection of public policy and morality is certainly not the key or predominant role of EUIPO and E.U. trade mark law.” So, keep watch for a decision in this case — it could be a game changer in Europe.

Turning our lens now to patent law, in the U.S., though not included in a statute (i.e. black letter law), there existed a “Moral Utility Doctrine” from case law (court decisions). The Doctrine emanated from an 1817 court decision that stated that an invention could not be patented if it conflicted with the “sound morals of society.” The patents for vibrators in the early 1900s do not describe sexual uses. This exclusion may have been purposeful in light of the Doctrine. The USPTO and the courts relied on this doctrine through about 1980, when a series of cases moved away from this philosophy.

Today, questions under the morality clauses typically come up in relation in to genetic engineering and ethics. For example, should patents be allowed on human genes, or genetically modified animals? In my opinion, these questions seem like much more trying questions of ethics than whether women should be allowed to use dildos. Thankfully, in the U.S. and much of the developed world, we’ve come a long way. Accordingly, sex toys are not prohibited patent protection on moral grounds in a vast number of developed countries, including the U.S., E.U., Canada, Australia and others.

That is not the case everywhere though. A little more than a year ago, India’s law came under public scrutiny when it was reported that Standard Innovation, the maker of We-Vibe products (now part of WOW Tech Group), was denied a patent for its C-shaped vibrator by the India Patent Office. In India, Section 3(b) of The Patents Act, 1970 provides, in pertinent part:

The following are not inventions within the meaning of this Act, —

(b) an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life…

The India Patent Office decided that the We-Vibe vibrator fell under this section of the law, and accordingly, was not entitled to a patent. The decision discussed that importing and selling sex toys in India is illegal as under Section 292 of the Indian Penal Code, it is unlawful to sell or distribute “obscene” objects. “Obscene” is defined there as “[A] book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object] … if it is lascivious or appeals to the prurient interest.”

Even in light of these laws, Entrepreneur India reported that major players in the sex toy industry are moving into the market there. Laws denying intellectual property protection based on morality make doing business difficult and uncertain in pleasure products and porn. Brands must come up with a global patent and trademark strategy, which can be complicated by outdated laws relating to sex, obscenity and profanity. Hopefully, the U.S. Supreme Court’s recent decision will eventually be echoed around the world, and the upcoming E.U. decision is the perfect place to start.

Maxine Lynn is an intellectual property (IP) attorney with the law firm of Keohane & D’Alessandro, PLLC, having offices in Albany, New York. She focuses her practice on prosecution of patents for technology, trademarks for business brands, and copyrights for creative materials. Through her company, Unzipped Media, Inc., she publishes the “Unzipped: Sex, Tech & the Law” blog at SexTechLaw.com and the “Unzipped: The Business of Sex” podcast at BusinessOf.sex.

Disclaimer: The content of this article constitutes general information, and is not legal advice. If you would like legal advice from Maxine Lynn, an attorney-client relationship must be formed by signing a letter of engagement with her law firm. To inquire, visit Sextech.lawyer.

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

opinion

Why Inclusivity in the Pleasure Industry Is More Important Than Ever

2025 has kicked off with a series of unsettling events. Tension and anxiety are high across North America as the unknown impact of tariffs, climate change and attacks on human rights loom ominously. In times of unrest, seeking pleasure is not frivolity but necessity.

Sarah Tomchesson ·
opinion

Tips for Keeping the Adult Retail Trade Show Momentum Going

Trade shows are a whirlwind of energy, excitement and opportunities. You spend days on a vibrant, buzzing show floor, making valuable connections and discovering innovative and exciting new products. You spend time, energy and money to be a part of this fabulous circus.

Rin Musick ·
opinion

2025's Top Tech Trends That Adult Retailers Should Know About

I just got back from the National Retail Federation’s Annual Convention & Expo, also known as “Retail’s Big Show,” where I walked the floor, sat in on key panels, talked with industry experts and influencers, and did my best to sift through the b.s. so I could report back to you all on the things you need to care about.

Sean Quinn ·
opinion

Protecting Content Ownership Rights When Using AI

In today’s digital age, content producers have more tools at their disposal than ever before. Among these tools, artificial intelligence (AI) content generation has emerged as a game changer, enabling creators to produce high-quality content quickly and efficiently.

Corey D. Silverstein ·
opinion

Understanding the Importance of Graphic Design in Sexual Wellness Social Media Marketing

In the world of social media, graphic design is more than just making things look visually appealing — it’s a vital tool in shaping and maintaining a brand’s identity. Your social media is your storefront, so aesthetics mean everything.

Hannah McManus ·
opinion

How Adult Retail Is Shaping Sexual Health One Customer at a Time

Remember back in health class, when they taught us about boundaries, consent and how many nerve endings are in the clitoris? Of course you don’t, because it didn’t happen. In fact, sex education is still severely lacking in much of the U.S.

Kimberly Scott Faubel ·
trends

Meet the Up-and-Coming Pleasure Brands of 2025

Over the past year, the pleasure industry has witnessed the emergence of new brands across various adult retail categories — brands that are now entering 2025 with ambitious goals for success and growth in their sophomore year.

Ariana Rodriguez ·
profile

WIA Profile: Nefertiti Mitchell

Local retailers are the backbone of the pleasure industry. Driven by passionate business owners who are deeply dedicated to sexual wellness, brick-and-mortar stores serve as safe spaces that uplift and delight customers — while greasing the wheels of commerce for manufacturers and distributors.

Women In Adult ·
profile

Industry Vet Mike Savage Discusses Comeback, Goals With Full Circle Distribution

"We never know where life’s going to take us,” says Mike Savage. He should know. The pleasure biz veteran, who describes himself as “a poor Irish kid from Philly,” first made his name in the adult retail biz over the course of a nearly 40-year career.

Ariana Rodriguez ·
profile

Sensually Yours Founder Shellee Rose on Boosting Sex Positivity in Hawaii

Honolulu pleasure store Sensually Yours has served Hawaii for 40 years, establishing itself as a top destination for adult products. Founder and President Shellee Rose says her most important strategy for achieving four decades of success has been prioritizing customers.

Quinton Bellamie ·
Show More