Supreme Court to Rule on Vulgar Trademarks
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UPDATED: Sep 10, 2020
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The US Supreme Court has agreed to decide a case involving whether the owner of a clothing line can register “FUCT” as a trademark.
An examiner at the US Patent and Trademark Office ruled against Erik Brunetti, the owner of the clothing line, and he appealed to the Trademark Trial and Appeal Board.
Brunetti claims that the acronym stands for “Friends U Can’t Trust.”
The Board was skeptical, saying that the term was a “phonetic” twin of the past-tense form of a common curse word.
As the New York Times reported, the Board also found that Brunetti’s websites and products “contain strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny.”
A 1905 federal law states that a trademark can be refused if it “Consists of or comprises immoral, deceptive, or scandalous matter.”
A federal court in New York agreed that the term on Brunetti’s clothes was vulgar but ruled that the law against “scandalous” trademarks was contrary to the First Amendment to the US Constitution, which protects freedom of speech.
The First Amendment states in full:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As I wrote about in this blog, the 1905 law, which is part of the Lanham Act, also prohibits the registration of a mark that may:
disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…
Various parties have challenged the law. For example, Simon Tam, the leader of a Portland-based “Chinatown Dance Rock” band called “The Slants” fought for for seven years for the right to obtain a federally registered trademark for the band’s name and was finally successful at the US Supreme Court in 2017.
Brunetti’s lawyer said that the decision in Tam’s case should make his case easy, and that offensive “scandalous” marks should be treated the same as offensive disparaging marks.
Based on their reasoning in the Tam case, the Justices aren’t so sure.
An issue in Brunetti’s case is whether a ban on vulgar words in trademarks is “viewpoint neutral” and thus permissible under the First Amendment.
According to Brunetti’s lawyers,
Marks favorable to religion are allowed, but marks critical of religion or likely to cause religious controversy are prohibited. Marks about input into the digestive system are approved, while marks about output are rejected. Polite humor is fine, raunchy humor is scandalous. Raising babies is sweet, making babies is disgusting.
According to lawyers for the US government, which opposes the registration,
The scandalous-marks provision simply reflects Congress’s judgment that the federal government should not affirmatively promote the use of graphic sexual images and vulgar terms by granting them the benefits of registration.
The parties are expected to make their oral arguments to the Court sometime this spring.