Iancu v. Brunetti 139 S.Ct. 2294 (June 24, 2019).
Erik Brunetti, a wise guy or a genius (or both) started a clothing brand called “FUCT.” How much would young people love to wear a shirt that says, “FUCT” to school just to make a statement?
Mr. Brunetti wanted to protect his brand with the power of the United States behind him. So, he applied for Trademark protection from the United States Patent and Trademark Office (USPTO).
Register Your Trademark to Protect it
Trademark registration is automatic evidence of the trademark’s validity and registration puts everyone on notice that you own the mark. No one can say they didn’t know about your business mark. This is a case closer for a lot of lawsuits dealing with trademark infringement.
Whoops, Can You Trademark Foul Language?
However, registering a trademark is a task that’s easier said than done- “FUCT” ran into some problems getting registered. A federal law called the Lanham Act (which created registration) puts some limits on what trademarks can be registered. I’ll let you picture all the variations of marks that won’t get federal protection. Essentially, the Lanham Act won’t allow marks that are scandalous or immoral to be registered. So, you can imagine: “FUCT” comes off as a tad bit scandalous. The USPTO uses this test to determine if marks are scandalous: would a substantial composite of the general public grin the mark shocking to the sense of truth, decency, or propriety giving offense to the conscience or moral feelings calling out for condemnation, disgraceful, offensive, disreputable or vulgar.
Is This Test For Real?
This very wordiness of the test makes it feel super subjective and almost unsure of its own elements. Shocking to the sense of truth? Are they talking about the news lately? It’s a little confusing to say the least, almost arbitrary. In a country with so many different cultures, exactly how much is a substantial composite of the general public? Should the Amish be consulted about the words and names that get registered? Should the porn industry?
Well, Brunetti’s “FUCT” clothing didn’t cut the USPTO’s mustard. They denied him registration. Brunetti appealed it. The federal court found the Lanham’s Act bar to scandalous or immoral words being registered invalid. The Supreme Court stepped in to settle the whole thing.
Another Case Registered the Trademark “The Slants” For Asian-Led Band
Not too long ago the Supreme Court stated that you can register a mark that disparages people living or dead despite Lanham’s act prohibiting it. That was a case involving an Asian band leader who called his band “The Slants” and wanted to trademark it. I’ll let you figure out the math there. In that case, the Supreme Court came up with two propositions:
If a bar to trademark registration is viewpoint-based, then it is unconstitutional. The bar to the disparagement of people is viewpoint-based and therefore unconstitutional. Viewpoint is subjective.
Bars To Trademark Registration That Is Viewpoint Based are Unconstitutional
The government cannot discriminate against ideas that offend. In this case, the Supreme Court noted that the USPTO gave trademark registrations to marks that supported decency, like “Love Rules,” etc. but denied it to marks like, “You Can’t Spell Healthcare Without THC…” for pain relief medication. It’s pretty obvious how subjective this standard is.
The USPTO found it scandalous to glamorize drug abuse. The USPTO had no trouble registering D.A.R.E., though. Thus, the Supreme Court invalidated the ban. So now foul language can be registered and protected. I just searched “Fuck” and found that as of August 20, 2019, the word mark “FUCK YES TO ALL THIS SHIT” was registered. Viola!
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