Supreme Court Scandalous Trademarks

Los Angeles artist Erik Brunetti, the founder of the streetwear clothing company "FUCT," poses for a photo in Los Angeles Thursday, April, 11, 2019. “We wanted the viewer to question it: Like, is that pronounced the way I think it’s pronounced?” he said of his streetwear brand “FUCT,” which began selling clothing in 1991. On April 15, the Supreme Court will hear Brunetti’s challenge to a part of federal law that says officials should refuse to register trademarks that are “scandalous” or “immoral.” (AP Photo/Damian Dovarganes)

WASHINGTON — Erik Brunetti’s four-letter fashion 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.”

“We wanted the viewer to question it: Like, is that pronounced the way I think it’s pronounced?” he said of his streetwear brand “FUCT,” which began selling clothing in 1991.

Today, the Supreme Court will hear Brunetti’s challenge to a part of federal law that says officials should refuse to register trademarks that are “scandalous” or “immoral.” Brunetti says it should be struck down as an unconstitutional restriction on speech.

The government is defending the century-old provision. The Trump administration says in court papers that the law encourages trademarks that are appropriate for all audiences. It argues it isn’t restricting speech but rather declining to promote it.

Brunetti and others like him who are denied trademark registration under the “scandalous” provision can still use the words they wanted to register for their business, nonprofit or brand. They just don’t get the benefits that come with registering a trademark. For Brunetti, that would largely mean a better ability to go after counterfeiters who knock off his designs.

Brunetti would seem to have a strong argument. Two years ago, the justices unanimously invalidated a related provision of federal law that told officials not to register disparaging trademarks. In that case, an Asian-American rock band sued after the government refused to register its band name, “The Slants,” because it was seen as offensive to Asians.

In court, the justices had no trouble saying the band’s name, but Brunetti’s brand may be different. His lawyer, John R. Sommer, says he plans to say the individual letters of the name, “F-U-C-T,” which Brunetti sometimes does too. Another possible workaround: explaining the brand is something of an acronym for “Friends U Can’t Trust.”

Part of Sommer’s argument is what he sees as the arbitrary nature of the United States Patent and Trademark Office’s decisions about what gets tagged as scandalous or immoral. A lawyer working for the office who is from the South might find something “not nice” that wouldn’t faze a lawyer from the Bronx, Sommer said. That means “you can register profanity if you’re lucky” and you get assigned a lawyer who allows it, Sommer said.

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