The Supreme Court, which is pretty squeamish about vulgar language, recently agreed to hear a case about whether the owner of a line of clothing sold under the brand name FUCT can register a trademark for the term.
An official at the Patent and Trademark Office said no, reasoning that the term sounded like the past tense of the most versatile Anglo-Saxon curse word. A 1905 federal law allows the office to refuse to register trademarks that are “immoral, deceptive or scandalous.”
Erik Brunetti, the owner of the clothing line, appealed to the Trademark Trial and Appeal Board, arguing that the name stood for “Friends U Can’t Trust.” That “stretches credulity,” the board ruled.
Basing its decision on Google search results and entries in Urban Dictionary, the board rejected Brunetti’s application, calling his brand name a “phonetic twin” of the curse word.
A federal appeals court in Washington, D.C., agreed that the term was scandalous. But it said the law barring scandalous trademarks ran afoul of the First Amendment.
“The trademark at issue is vulgar,” Judge Kimberly A. Moore wrote for a divided three-judge panel of the U.S. Court of Appeals for the Federal Circuit, a specialized court in Washington.
“The First Amendment, however,” Moore wrote, “protects private expression, even private expression which is offensive to a substantial composite of the general public.”
That conclusion was bolstered by a 2017 Supreme Court decision striking down a neighboring clause in the same part of the trademark law. That one denied federal trademark protection to terms that disparage people, living or dead, along with “institutions, beliefs or national symbols.” Brunetti’s lawyers said that the 2017 decision, Matal v. Tam, made his case an easy one.
“Disparaging marks are refused because they are offensive,” they told the appeals court. “Scandalous marks are refused because they are offensive.”
If one clause is unconstitutional, they argued, then so is the other.
The Supreme Court apparently thinks the question is more complicated, as it agreed this month to hear the government’s appeal. If nothing else, the court can use Brunetti’s case to sort out just what it meant to say in the 2017 decision, which ruled for an Asian-American dance-rock band called the Slants. (The decision also effectively allowed the Washington Redskins football team to register its trademarks.)
The justices were unanimous in ruling that the prohibition on disparaging trademarks violated the First Amendment. But they managed to split 4-4 in most of their reasoning, making it hard to analyze how the decision applies in the context of the ban on scandalous terms.
Still, the two blocs of justices did appear to agree that a central flaw in the ban on disparagement was that it took sides or, in legal language, was not viewpoint neutral. Criticism was forbidden; praise was not.
The first battleground in the new case, then, will be whether a ban on vulgar words and the like is viewpoint neutral.
The government, defending the law, said it barred entire categories of speech — “vulgar terms and graphic sexual images” — but did not discriminate against particular viewpoints within those categories. Brunetti’s lawyers disagreed.
“Marks favorable to religion are allowed, but marks critical of religion or likely to cause religious controversy are prohibited,” they wrote. “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.”
The trademark appeals board, moreover, took account of the views expressed on Brunetti’s website and products, saying they “contain strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny.” That sounded like viewpoint discrimination, Brunetti’s lawyers wrote.
In urging the Supreme Court to hear its appeal, the federal government argued that Brunetti remained free to use and protect his trademark and had lost only the benefits of federal trademark registration, including some advantages in litigation over the validity of the mark.
“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 government’s brief said. The trademark Brunetti sought to register was “equivalent to the vulgar word for which it is a homonym.”