SCOTUS: Ban on "FUCT" trademark registration violates First Amendment

Clay Curtis
June 25, 2019

The Supreme Court on Monday struck down a provision in a federal law banning "scandalous" or "immoral" trademarks from being registered, NBC News reports.

Following a back and forth that began in 2011, Erik Brunetti's Los Angeles clothing brand FUCT has won its Supreme Court case which now allows for the trademark of the brand name.

In another free speech case decided previous year, the Supreme Court ruled that states can not impose a blanket prohibition on apparel such as T-shirts and buttons bearing political messages in polling sites, striking down a Minnesota law as a First Amendment violation.

"A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this court", he wrote.

Now the Supreme Court has applied the same reasoning to the rule against immoral and scandalous trademarks.

The Trump administration had argued that banning vulgar terms and sexually indecent images did not discriminate against anyone's viewpoint, and that the government should not be forced through the trademark system to promote words and images that would be shocking or profane to the public.

This time, all members of the court agreed that the "immoral" provision of the law could not survive because there was no way to construe it except as viewpoint bias.

The U.S. Supreme Court building is pictured in Washington, U.S., March 20, 2019. And therefore, it's in violation of the First Amendment.

The case wasn't about Brunetti's right to sell products with the "FUCT" label on them.

"There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all".

"Government bureaucrats should not be deciding what speech is or is not deserving of trademark protection based on what they consider to be too "scandalous" and 'immoral.' That is, at its heart, government suppression of speech based on the viewpoint expressed".

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"Fuct is free speech", the clothing line posted on its website after the ruling.

"Viewpoint discrimination is poison to a free society", Alito said.

The majority decision, written by Justice Elena Kagan and joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Neil Gorsuch, and Brett Kavanaugh, ruled that this part of the Lanham Act is unconstitutional because it discriminates on the basis of viewpoint.

The 6-3 ruling in the case, Iancu v. Brunetti, could lead to more requests to trademark words that may be considered lewd, profane, and vulgar.

"No speech is being restricted; no one is being punished", Roberts wrote in an opinion that Justice Stephen Breyer joined. For its part, the government argued that if the statute were upheld, it would interpret the provision more narrowly going forward.

In his concurring opinion, Justice Alito reiterated the dangers of allowing the government to regulate speech in such a broad fashion, but allowed for the possibility that Congress could more narrowly define a similar regulation.

Federal registration gives trademark owners protections on top of the rights they already have under state law.

Breyer wrote: "How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work?"

When the trademark office shot down Brunetti, he filed suit. That was not the case two years ago, when the justices and attorneys repeatedly used the word "slants" during the case involving the band.

But he said there is room for Congress to carefully craft legislation that would outlaw truly vulgar trademarks that don't communicate any ideas or expressions.

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