LAS VEGAS — Industry attorney Marc Randazza recently released a paper that examines intellectual property rights and the implications of morality-based impediments to the enforcement of them and their supportability under international agreements.
The paper, published by the Nevada Law Journal, offers sections on patents and trademarks in relation to notions of morality by certain countries, including approaches in the U.S., U.K., Australia, Taiwan and the E.U.
It discusses numerous key contemporary intellectual property cases involving the trademarks The Slants, CumFiesta, FuckingMachines and Screw You, among others.
“While many national laws are enacted in order to govern national or local notions of ‘morality,’ such laws are generally limited to governing the conduct of those subject to them. However, in the case of intellectual property rights, some nations erect barriers to the protection of [those rights] on the basis of ‘morality,’” Randazza wrote.
Specific to the U.S., Randazza said in his paper that “there seems to be a strong constitutional argument against morality restrictions, and [The Slants] decision makes that clear,” he said citing the recent key appellate ruling that said the U.S. government can’t deny trademarks over offensive names.
“But, when it comes to sexual expression, the U.S.’ underlying power of prudishness should never be counted out,” he wrote. “Further, despite the constitutional mandate against government censorship, the USPTO has always been unwilling to budge from an expansive view of its duties as a moral arbiter, unless it is forcibly dislodged from its current position.
On a world level, Randazza concluded that there will always be those who seek to impose their own sense of morality upon others.
“With intellectual property rights being of such prominent international and economic importance, it is no surprise that this eternal conflict plays out in the copyright and trademark offices worldwide,” he said.
Marc Randazza’s “Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights," can be downloaded here.