U.S. Supreme Court weighs foul language trademarks

Daily News Article   —   Posted on April 15, 2019

U.S. Supreme Court weighs foul language trademarks

(Editor’s note: contains language that some readers may find offensive, paragraphs 1, 13, 14, 16, 19, 22 and 23)


(by Andrew Chung, Reuters) WASHINGTON — …On Monday, [the U.S. Supreme Court will] hear arguments in a free-speech case brought by Los Angeles-based clothing designer Erik Brunetti. His streetwear brand “FUCT” – which sounds like, but is spelled differently than, a profanity – was denied a trademark by the U.S. Patent and Trademark Office. [Brunetti says FUCT stands for “Friends U Can’t Trust.”]

Brunetti has [dismissed] concern about the potential for foul language during arguments in the [court]. In a written brief, his lawyer told the justices “the discussion will be purely clinical, analogous to when medical terms are discussed.”

At issue is a provision of U.S. trademark law that lets the trademark office deny requests for trademarks on “immoral” and “scandalous” words and symbols. Brunetti, 50, is challenging the law as an infringement of his right to freedom of expression, protected by the U.S. Constitution’s First Amendment.

In 2017, a Washington-based federal appeals court ruled in his favor. The Trump administration has appealed that ruling to the…Supreme Court. The provision at issue has been on the books for more than a century.

…The main concern, the administration said, is all the expletives and sexually graphic imagery that would flow into the marketplace if the law were to be struck down.

For Brunetti, the government’s fears are hypothetical.

“There are always going to be people who are offended, but you can’t control how everybody thinks,” Brunetti said in an interview. “When it has to do with the First Amendment, it’s a slippery slope.”

The justices struck down a different trademark law forbidding the registration of “disparaging” trademarks in a 2017 case involving an Asian-American dance rock band called The Slants, a name that trademark officials deemed offensive to Asians. Speech may not be banned even if it expresses ideas that offend, the court ruled.

Banning vulgar terms and sexually indecent images is different because it does not discriminate against anyone’s viewpoint, U.S. Solicitor General Noel Francisco, the administration’s top Supreme Court lawyer, said in a written brief. Instead, it “advances the government’s interest in encouraging the use of trademarks that are appropriate for all audiences, including children.”

The federal government, Francisco added, should not be forced through the trademark system to actively promote words and images the public would find shocking or profane.

Brunetti, who grew up skateboarding, saw a market for edgy streetwear and founded FUCT in 1990, with a focus on questioning authority. “That was the cleverness of it, that a majority of people think it’s pronounced ‘f#*ed,’” he said. The acronym, he added, also means “Friends U Can’t Trust.”

A trademark would make it easier to protect his brand against counterfeiters. But the FUCT trademark application, which was only filed in 2011, was denied. The trademark office said the brand would be perceived as the phonetic equivalent of the profanity, observing that Brunetti’s products contained sexual imagery, misogyny and violence.

“That sounds to me like every movie that has come out over the last 40 years,” Brunetti said, adding that his products are actually quite tame. “Should we start regulating the entertainment industry then?”

…Brunetti used to sell his wares in some retail stores, but has moved exclusively online, where his monthly lines sell out within hours. Among his recent products: A hoodie that reads, “We are Fuct.”

In its 2017 ruling in Brunetti’s favor, the U.S. Court of Appeals for the Federal Circuit – a court that specializes in intellectual property – noted the ubiquitous* nature (*constantly encountered; everywhere) of vulgar content, with or without trademarks, and said:

“In this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.”

And it said the trademark office applies the law unevenly. Even other words referencing the same foul term as Brunetti’s have been approved, such as Fcuk, the court said. …

The Trump administration…emphasized the importance of targeting vulgar material, filing with the Federal Circuit a list of rejected registrations including drawings of sex acts, pictures of genitalia, and phrases like “F*#@ Off You F*%#ing F@*#.”

The administration said even more graphic and vulgar trademarks would be submitted for approval if this law were to be struck down, with a ripple effect that could reach beyond trademarks because all levels of government commonly exclude explicit pictures and profanity from places or programs they create.

“Even military cemeteries or public transportation advertising authorities could lose control over whether that graphic or profane content would be displayed on their property,” the administration said.

Additional reporting by Lawrence Hurley.Published at Reuters .com. Reprinted here for educational purposes only. May not be reproduced on other websites without permission from Thomson Reuters.

Questions

1. The first paragraph of a news article should answer the questions who, what, where and when. List the who, what, where and when of this news item. (NOTE: The remainder of a news article provides details on the why and/or how.

2. Why did the U.S. Patent Office deny Mr. Brunetti a trademark for his brand?

3. On what grounds is Brunetti challenging the trademark law?

4. a) How long has the trademark law being challenged been on the books?
b) How does the Trump administration explain its challenge to the lower court’s ruling in favor of Brunetti? (What are its concerns? Why is it important to target vulgar material?) Be specific.
c) How did U.S. Solicitor General Noel Francisco, the Trump administration’s top Supreme Court lawyer, explain the difference between the the trademark law on disparaging trademarks and the law on trademarks for immoral and scandalous words?

5. a) How did the U.S. Court of Appeals for the Federal Circuit explain its ruling in 2017 on Brunetti’s case?
b) Do you agree with this reasoning? Explain your answer.

6. The trademark office said the brand would be perceived as the phonetic equivalent of the profanity, observing that Brunetti’s products contained sexual imagery, misogyny and violence. Brunetti dismisses that argument by saying, “That sounds to me like every movie that has come out over the last 40 years. Should we start regulating the entertainment industry then?”
The government has not attempted to regulate his product; the Trademark Office has only denied his request for a trademark based on the law as written.
Interesting that Reuters found it necessary to include a warning at the top of the article stating: “Editor’s note: contains language that some readers may find offensive…) – please note that StudentNewsDaily has edited some of this content
What do you think?

7. Consider the following:

  • In a previous interview, Brunetti, who is 50, said he’s never met anyone truly offended by his brand. “Most people find it clever,” he said.
  • From para. 7: “There are always going to be people who are offended, but you can’t control how everybody thinks,” he said in another interview. “When it has to do with the First Amendment, it’s a slippery slope.”
  • His brand is described as edgy..with a focus on “questioning authority” and he again describes the “cleverness” of his brand.

a) What do you think: does he have a First Amendment right to be granted a U.S. trademark for what he sees as his “edgy, clever” brand? (Do you think he makes a reasonable argument for why he should be granted a trademark?) Explain your answer.
b) Do you think the government makes a reasonable argument for why he shouldn’t be granted a trademark? Explain your answer.


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Background

Approximately 7,500 cases are sent to the U.S. Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue.

EXPLANATION OF PROCEDURE FOR ORAL ARGUMENTS IN THE SUPREME COURT:
(from supremecourt.gov/visiting/visitorsguidetooralargument.aspx)

  • A case selected for argument usually involves interpretations of the U. S. Constitution or federal law. At least four Justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues.
  • An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices. Prior to the argument each side has submitted a legal brief – a written legal argument outlining each party’s points of law. The Justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
  • Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mondays, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during December and February). The argument calendars are posted on the Court’s Website under the “Oral Arguments” link. In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session. They grant review in approximately 100 of the more than 10,000 petitions filed with the Court each term. No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the Justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.
  • During an argument week, the Justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case. If the Chief Justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other Justice in the majority. If the Chief Justice is in the minority, the Justice in the majority who has the most seniority assumes the assignment duty.

Resources

Visit the Supreme Court website at supremecourt.gov.