The US supreme court has a message for the federal trademark office: get FUCT.
Justices came to that conclusion after the designer Erik Brunetti’s fashion line ran into trouble with the US patent and trademark office (PTO), which registers product names. Brunetti was seeking a trademark for his brand, FUCT, which he says is pronounced letter by letter. (The brand’s Twitter bio suggests it stands for “friends U can’t trust.) But the trademark office wasn’t thrilled with the branding and turned down Brunetti’s registration, under a law banning “immoral or scandalous matter”. In the words of PTO authorities, FUCT was “a total vulgar”.
But Brunetti battled the PTO decision, and the dispute made its way through the legal system to the highest court in the land.
The supreme court accepted that anyone who read FUCT as a swear word “would hardly be alone”. Faced with claims that the word was not, in fact, a total vulgar, Justice Samuel Alito replied: “Oh, come on.” The word was banned from use in court. Still, on Monday, the court found that the trademark office should keep its personal feelings to itself – and Alito joined in the opinion.
The law violates the first amendment’s protections for free speech, the court said in its decision, emphasizing that deciding whether trademarks are “immoral” means discriminating “on the basis of viewpoint”. In an opinion delivered by Elena Kagan, the court considered the definitions of “immoral” and “scandalous”, concluding that the law in question, the Lanham Act, “allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety … ‘Love rules’? ‘Always be good’? Registration follows. ‘Hate rules’? ‘Always be cruel’? Not according to the Lanham Act’s ‘immoral or scandalous’ bar”.
Kagan went on to cite some examples: the PTO was fine with “say no to drugs – reality is the best trip in life”, but it nixed “you can’t spell healthcare without THC” for pain relievers and advertising “bong hits 4 Jesus”.
Now that justices have struck down the ban on “immoral and scandalous” words, Brunetti can get his trademark – and other questionable brand names should have an easier time getting trademarks of their own.
The Trump administration had argued that undermining the law would lead to a market flooded with shocking language and images. But all nine justices agreed that a ban on “immoral” speech stood in the way of free expression. (Three justices, however, felt the ban on “scandalous” trademarks should stand, and Alito suggested that future congressional action could target trademarks “containing vulgar terms that play no real part in the expression of ideas”.)
Brunetti’s lawyer hailed the decision in a news release, acknowledging that “many Americans are uncomfortable with Brunetti’s trademark”. But “the question is whether any government gets to impose its views about what is moral and suppress those if finds distasteful. That is a road that we, as Americans, should not go down.”