Should a brand name that resembles a profanity be barred from trademark registration? That’s the question at the heart of a case being heard Monday by the U.S. Supreme Court, centering on a streetwear brand called FUCT.
The founder, Erik Brunetti, started the line in 1990 out of his bedroom in Venice, Calif., and applied to register the mark in 2011 with the U.S. Patent and Trademark Office, which, if approved, would have given him greater authority to fight counterfeiters who used the brand name. His application was denied, however, on the grounds that the name resembled an “immoral” or “scandalous” term, which federal regulation prohibits from registration.
Brunetti’s lawyers are arguing that the ban represents an unconstitutional restriction on free speech, saying also that the name is an acronym for Friends U Can’t Trust. Two law professors from New York University also filed a brief noting that the PTO’s enforcement of the immoral-or-scandalous-marks provision is “systematically inconsistent and arbitrary,” as illustrated by instances in which the office denies a mark both for vulgar language and because a similar mark is already registered. In one example from 2009, a clothing brand was blocked from registering the mark FUK!T, while another, called PHUKIT, was allowed. Similarly, FVCK STREET WEAR was registered in 2014, while two years later, FVCK was rejected for being scandalous as well as confusingly similar to an already-registered mark.
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There’s reason to believe Brunetti could emerge victorious: In 2017, another portion of the Lanham Act — the disparagement provision — was struck down as unconstitutional. In that case, an Asian-American musician who founded a band called The Slants was denied trademark registration on the basis that the name could be construed as disparaging to “persons of Asian descent;” the musician, meanwhile, argued that he chose the name to reclaim a term that had been used against him as an insult.
A federal appeals court ruled in Brunetti’s favor in 2017, but President Donald Trump’s administration appealed that ruling to the Supreme Court, which is now majority-conservative. The government argues that it isn’t restricting speech, as businesses are still free to use such words and symbols in the marketplace. It also says it has an “interest in encouraging the use of marks that are appropriate for all audiences, including children.”
According to The New York Times, the justices managed to get through the first hour of arguments Monday without ever saying the brand’s name. Chief Justice John Roberts called it the “vulgar word at the heart of the case,” while Justice Stephen Breyer used the phrase “the word at issue.”
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