Have you ever wondered what, exactly, can be trademarked? What if the trademark sounds like a dirty word? Would the government be able to decline to trademark something that many people would find offensive? Or would the First Amendment protect those who choose a trademark that some people would find shocking?
Recently, the U.S. Supreme Court agreed to hear the case of a trademark denied. The applicant, a Los Angeles artist named Erik Brunetti, wants to trademark the name of his streetwear company. That company is called “Friends U Can’t Trust.” He shortens it to “FUCT.” And yes, that rhymes with “duct.”
The U.S. Patent and Trademark Office declined to register the trademark on the grounds that FUCT, as the government argued in court, evokes “perhaps the paradigmatic word of profanity in our language.”
More to the point, the USPTO argues that the Lanham Act, America’s primary trademark statute, prohibits trademarks that are “scandalous” or “immoral.”
Brunetti says that the brand name is thought-provoking and that the century-old prohibition on “scandalous” or “immoral” is too vague. He also argues that the prohibition violates his free speech rights under the First Amendment.
Is the prohibition viewpoint-neutral?
In order for the government to curtail speech, it needs to meet a rigorous test. First, the prohibition on speech must be in service of a compelling government interest. Second, it must be narrowly tailored to serve that interest, so that as little prohibition on speech as possible is implemented. Third, the prohibition must be viewpoint-neutral, meaning that it doesn’t curtail the speech of any particular group, although commercial speech has only limited protection.
The U.S. Supreme Court will need to determine whether the Lanham Act’s prohibition on scandalous or immoral speech meets that test.
Is Mr. Brunetti’s viewpoint being curtailed by the USPTO’s refusal to trademark FUCT? He claims that the mark is meant to challenge “the assumptions of society, the government and accepted wisdom.” His viewpoint is counter-cultural, to be sure. But is it merely the viewpoint that scandalous or immoral trademarks should be allowed?
Is the prohibition on scandalous or immoral trademarks narrowly tailored to promote a compelling state interest? What interest is being served? Trying to keep trademarks from offending people may not be a compelling enough interest. And, since many people would disagree about whether something is in fact scandalous or immoral, is the prohibition clear enough for the average trademark seeker to predict what will be allowed?
These are the questions the high court will need to answer. The justices didn’t give a strong signal at oral argument about which way they might lean. They asked tough questions of both sides.
Justice Stephen Breyer, for example, worried that FUCT wasn’t the most offensive possibility for trademarks.
“What I am worried about is the viewpoint, as you say, but I’m also worried about the racial slur we all know about, suddenly in certain places in the United States, appearing as a product name, appearing on every bus where it’s advertised,” he said.