Supreme Court Strikes Down Ban On Trademarking ‘Immoral,’ ‘Scandalous’ Words, Symbols
BY NINA TOTENBERG & DOMENICO MONTANARO
In a win for advocates of free speech, the Supreme Court struck down a ban on trademarking words and symbols that are “immoral” or “scandalous.”
The case was brought by clothing designer Erik Brunetti, who sought to trademark the phrase FUCT. The decision paves the way for him to get his brand trademarked.
The court, like others, struggled with how to deal with the word — in particular, its pronunciation. Here’s how Justice Elena Kagan described it in her majority opinion: The clothing brand “is pronounced as four letters, one after the other: F-U-C-T. … But you might read it differently and, if so, you would hardly be alone.”
She noted that it has been described “as ‘the equivalent of [the] past participle form of a well-known word of profanity.’ ”
Five justices joined Kagan’s majority opinion: Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
Justice Alito, in a concurring opinion, noted: “Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.”
The justices struggled with what line to draw on which words they would find to be the most vulgar and profane. That’s why, in part, Chief Justice Roberts, Justice Stephen Breyer and Justice Sonia Sotomayor penned opinions that partially agreed and partially dissented.
“The Government, meanwhile, has an interest in not associating itself with trademarks whose content is obscene, vulgar, or profane,” Roberts wrote. “The First Amendment protects the freedom of speech; it does not require the Government to give aid and comfort to those using obscene, vulgar, and profane modes of expression.”
Brunetti’s clothing line is mainly hoodies, loose pants, shorts and T-shirts, all with FUCT prominently displayed. Brunetti opened the line in 1990 aimed at 20-somethings. He’s been trying since then to get his FUCT brand name trademarked so that he can go after copycats.
These counterfeits, he says, are costing him real money.
The U.S. Patent and Trademark Office, however, has consistently turned him down for trademark protection, contending that those letters violate a federal statute that bars trademark protection for immoral, shocking, offensive and scandalous words.
Brunetti’s case got a boost two years ago when the Supreme Court ruled that an Asian American band called The Slants could not be denied trademark protection just because the name used a term viewed as racially disparaging.
The FUCT case seemed considerably more daunting when the high court heard the case argued in April, and the justices went to great lengths not to use the FUCT name out loud.