The Supreme Court Is on into consider A “FUCT” trademark case #Supreme_CourtApril 15, 2019
The justices will have to decide whether the government’s intellectual property arm can deny trademark registration to marks it considers “scandalous” on the basis of the 1946 Lanham Act.
When the USPTO filed its appeal with Supreme Court, the Washington Redskins football team—at the time in a legal battle with Native Americans seeking to invalidate its trademark registration for being “disparaging”—sought to consolidate the two cases.
In other words, Tam—who was using a racist term to fight racism—would have found himself on the same side as the football team clinging to a disparaging term that Tam actually found offensive.
And despite the criticism from some, many free speech advocates saw Tam’s win as a victory for the First Amendment.
That leaves both trademark applicants and the USPTO unclear about just how far the ruling in Tam extends and led to the upcoming review of Brunetti’s case.
The Tam decision seemed to indicate that the USPTO couldn’t deny Brunetti’s registration on the grounds stated, that court found.
The government, for example, claims that it only refuses to register marks that refer to “profanity, excretory, and sexual matters.” But Brunetti points out that the USPTO is thus assuming that profanity does not express a viewpoint which is protected by the First Amendment.
Yet Brunetti’s mark was deemed offensive because he “critiqued capitalism, government, religion and pop culture.” In other words, the government was concerned that some in the public would be offended by a non-conformist position.
The problem with the USPTO’s arguments, according to Brunetti’s attorneys, is that it is restricting the very kind of speech that the First Amendment is meant to protect—speech that’s critical.
The government isn’t policing speech in any way, according to Iancu, and Brunetti is free to say and use FUCT as much as he wants.
Which brings us back to FUCT. When the trademark office appealed to the Supreme Court, Brunetti urged the justices to grant the government’s request for review to clarify any confusion surrounding trademarks and vulgar language. Basically, what both parties are asking is whether the finding that the disparagement clause is unconstitutional also extends to the “Scandalous Clause.”