High Court Keeps It PG at Hearing on Scandalous Marks

WASHINGTON (CN) – Giving not one Fuct in a Kafkaesque trademark battle, the Supreme Court navigated an hour of oral arguments Monday with nary a mention of the suggestive streetwear brand at the heart of the case.

Los Angeles artist Erik Brunetti, the founder of the streetwear clothing company Fuct, poses for a photo in Los Angeles on April, 11, 2019. Brunetti’s four-letter clothing brand starts with an “f” and rhymes with “duct.” The federal government calls it “scandalous” and “immoral” and has refused to register the trademark. Brunetti has a different word for his brand and designs: “thought-provoking.” On Monday, the Supreme Court heard Brunetti’s challenge to a part of federal law that says officials should refuse to register trademarks that are “scandalous” or “immoral.” The federal government is defending the century-old provision. Brunetti says it should be struck down as an unconstitutional restriction on speech. (AP Photo/Damian Dovarganes)

Deputy Solicitor General Malcolm Stewart got the ball rolling this morning when he noted that the brand started in 1990 by designer Erick Brunetti evokes “perhaps the paradigmatic word of profanity in our language.”

It was on that basis in 2011 that the Patent and Trademark Office refused to trademark the Fuct mark in 2011. The agency is hoping for a reversal now, after the Federal Circuit found that the First Amendment trumps the Lanham Act’s prohibition on scandalous marks.

To discuss words that are less than family friendly, the justices used context today — for example referencing “the seven words” or “seven dirty words,” a nod to the famous George Carlin routine that was itself the subject of a Supreme Court free-speech fight in 1978.

“I don’t want to go through the examples, I really don’t want to do that,” Justice Neil Gorsuch said, to laughter. 

Justice Stephen Breyer meanwhile referred to “the racial slur we all know about” to illustrate his concern about people being able to register particularly virulent words if Brunetti prevails.

Brunetti describes his brand as an acronym for “Friends U Can’t Trust.” He says the clothing line is all about challenging “the assumptions of society, the government and accepted wisdom.”

Just months before the Federal Circuit struck down the law on scandalous marks for Brunetti, the Supreme Court tackled a related issue when it sided with an Asian-American band called The Slants.

The case from the Slants involved the Lanham Act’s prohibition on “disparaging” marks, but Stewart told the Supreme Court today that the government has a clear interest in keeping profanities off of government-endorsed trademarks.

Denying that the prohibition discriminate based on the viewpoint of particular speech, Stewart noted that the lack of a trademark does not keep Brunetti from using the brand.  

Brunetti’s attorney John Sommer disputed this, emphasizing that the whole point of his client’s message is to question authority and prevailing social norms.

“Brunetti’s viewpoint is, as already pointed out, ‘I can be offensive, I don’t have to obey the authority,’” Sommer said. “And that’s viewpoint.”

The justices did not obviously signal today how they might rule, asking difficult questions of both attorneys. 

Some of the justices were skeptical the government has such a broad interest in keeping trademarked phrases clean and were concerned about how such a rule could be applied consistently. Noting a chart in one brief that showed instances in which certain words were rejected for trademarks even as very similar words were approved, Gorsuch asked how anybody could know ahead of time whether the government would approve a trademark.

“How is a reasonable citizen supposed to know?” Gorsuch asked. “What notice do they have about how the government is going to treat your mark?” 

At the same time, the justices were hesitant to side totally with Sommer’s argument, seeming squeamish about making the government put its stamp on the wave of vulgar trademark requests sure to pour in if Brunetti were to win his case.

“What I am worried about is the viewpoint, as you say, but I’m also worried about the racial slur we all know about, suddenly in certain places in the United States, appearing as a product name, appearing on every bus where it’s advertised, appearing on newsstands in Times Square, where it wouldn’t be, but it might be in some other city, and where children and others see it,” Breyer said.

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