When Eric Brunetti and Natas Kaupas started Fuct clothing in 1991, they likely did not anticipate a case involving the brand would be heard by the Supreme Court. This unlikely scenario is happening in a little over a month when the highest court in the land will decide whether the brand name violates America’s decency laws when it comes to trademarks. The century-old provision requires the Patent and Trademark office to deny applications for words that are deemed “scandalous” or “immoral.”
Solicitor General Noel Francisco said in his court filing that Congress does not want the federal government to “affirmatively promote the use of graphic sexual images and vulgar terms by granting them the benefits of registration.”
The administration also said the trademark law does not violate the First Amendment because it is not a restriction on offensive ideas. Instead it its aimed at an offensive means of expressing whatever thought the company wishes to convey, government lawyers say.
In response, Brunetti argued that if the justices uphold the trademark restriction, “state and local governments could effectively block unpopular organizations advancing controversial causes” thought to be scandalous to at least a portion of the public.
The case will be heard on April 15 with a decision slated to be issued by the end of June. You can read more about it in this article published this morning by NBC News.
UPDATE 04.16.19: Fuct’s case was heard before the Supreme Court yesterday; and NPR has posted a nice recap on where things stand now. You can view some excerpts below.
“Go to eBay, and you’ll see a lot of counterfeits, or go to Amazon, and you’ll see lots of counterfeits,” he [Eric Brunetti] said, noting that the knockoffs are costing him real money.
If he could get his brand trademarked, he could go after the copycats and shut them down. The U.S. government Patent and Trademark Office, however, has consistently rejected his trademark application, contending that those letters, “FUCT,” violate the federal statute that bars trademark protection for “immoral,” “shocking,” “offensive” and “scandalous” words.
Justice Samuel Alito asked what would happen when “really dirty words” were at issue. How about “racial slurs”? asked Justice Stephen Breyer, adding those are more like “swear words,” as they are insults that sting and are remembered by those who are targeted.
“What I’m worried about,” said Breyer, is that if a racial slur is trademarked, it will appear as a product name “on every bus where it’s advertised” and on newsstands where children and others will see it.
A decision is expected by Summer. Head over to NPR to read the entire piece.