The U.S. government barred a Los Angeles-based clothing company from trademarking the word "FUCT"; SCOTUS must decide if it's a First Amendment violation.
Talk about beating around the bush. According to Los Angeles Times reporter David Savage, lawyers for both sides in a trademark case regarding the word “FUCT” avoided uttering the the word during oral arguments before the U.S. Supreme Court this morning. At issue is whether the U.S. government can deny a trademark to L.A.-based clothing designer Erik Brunetti for the four-letter word, which is pronounced like the past participle of the ancient English invective.
Brunetti established his FUCT clothing line in 1990, and has been selling T-shirts, hoodies, hats and other apparel with the FUCT logo since then. A trademark would allow him to protect his lucrative brand name from being ripped off by counterfeiters. But the U.S. Patent and Trademark Office (PTO) rejected Brunetti’s request under a portion of the U.S. Trademark Act known as the “Scandalous Clause.”
Under this section, PTO bureaucrats can nix an application to register a trademark if it consists of “immoral” or “scandalous” material. As Brunetti’s attorneys demonstrate in their brief to the court in Iancu v. Brunetti, the PTO’s interpretation of what constitutes immoral or scandalous content is erratic and involves “viewpoint regulation,” which is impermissible under the First Amendment’s guarantee of freedom of speech.
From the Brunetti pleading:
In actual practice, the Government allows registration of some profanity, for example, “bitch,” and “damn.” The Government allows marks that use the word “fuck,” provided it is misspelled or not spelled out (FCUK, Reg. No. 2920270; FWORD, S/N 75/590854; and WTF IS UP WITH MY LOVE LIFE?!, Reg. No. 4024774). As to excretory words, the Government allows “feces,” “poop,” “turd,” (FAMOUS FECES, S/N 78/315509; POOP, Reg. No. 2956358; and TURD TOTER (BECAUSE NOBODY WANTS TO SEE YOUR TURD), Reg. No. 5397982), even though their meaning is identical to “shit,” which the Government usually refuses. The Government also allows “piss” and “urine.” (SATAN’S PISS, Reg. No. 5233724 and URINE OFF, Reg. No. 2553449). The Government allows some sexual terms, for example, “foreplay,” “intercourse” (IRISH BY INTERCOURSE, Reg. No. 4136786), 69 (when referring to sexual activity as in MILE HIGH 69, S/N 87/718907 and LOOPY SEX GAME 18+ OH 69, Reg. No. 5583858) and PINK TACO (when referring to female genitalia, e.g., PINK TACO FAN CLUB, S/N 77/402098, refused for other reasons).
In other words, given what the patent office allows, what’s the big deal about “FUCT” — which Brunetti maintains is an acronym for, “Friends U Cannot Trust”?
The government argues that the Scandalous Clause applies mainly to “profanity, excretory and sexual matter,” but in reality, according to Brunetti’s legal team, the PTO uses the clause to deny trademarks with religious overtones, such as “Khoran” and “Madonna,” drug-related terms like, “Acapulco Gold,” and harmless phrases, such as “coffee Nazi.”
Under the First Amendment, people cannot be prevented from selling products that use offensive words, symbols or phrases. However, the government asserts that a trademark confers a benefit and conveys a government stamp of approval, and so the patent office should be allowed to exclude words and ideas that it doesn’t like.
Last year, the Supreme Court struck down a similar part of Trademark Law, the so-called Disparagement Clause, which prevents trademarks that “disparage” or bring into “contempt, or disrepute” any person, living or dead.
That case, Matal v. Tam, involved an all-Asian rock band, which dubbed itself, The Slants, as a way of owning the racial epithet. The PTO said no, but in a unanimous decision delivered by Justice Samuel Alito, the court found that the law’s disparagement provision violated the Free Speech Clause of the First Amendment.
Alito wrote that, “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
The U.S. Court of Appeals for the Federal Circuit in Washington, DC heard both Matal v. Tam and the Brunetti case. In each, the appeals court concluded that trademarks are private, not public speech. As a result, the patent office cannot discriminate based on the content of the speech involved, and the Scandalous Clause, like the Disparagement Clause, is unconstitutional.
SCOTUS upheld the appeals court decision in Matal v. Tam, but Savage’s piece in the Los Angeles Times reported some skepticism expressed by Supreme Court Justice Stephen Breyer and Chief Justice John Roberts during Monday’s hearing. They wondered about the effects of overturning the Scandalous Clause and if such a decision would swing wide the floodgates for expletives and scatological references to be trademarked.
“Why can’t the government say we don’t want to be associated with this?” asked Breyer at one point during the orals. “That doesn’t forbid anyone from using the word.”
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