SCOTUS rules on 'FUCT' case, strikes down 'scandalous' part of trademark law
Erik Brunetti, Los Angeles artist and streetwear designer of the clothing brand FUCT, sits for a portrait in Los Angeles, California, U.S., April 7, 2019. The Supreme Court will hear the U.S. Patent and Trademark Office's appeal of a lower court deci …
WASHINGTON (AP) — The Supreme Court struck down a section of federal law Monday that prevented businesses from registering trademarks seen as scandalous or immoral, handing a victory to California fashion brand FUCT.
The high court ruled that the century-old provision is an unconstitutional restriction on speech. Between 2005 and 2015, the United States Patent and Trademark Office ultimately refused about 150 trademark applications a year as a result of the provision. Those who were turned away could still use the words they were seeking to register, but they didn't get the benefits that come with trademark registration. Going after counterfeiters was also difficult as a result.
PARIS, FRANCE - JULY 08: Model Lexi Boling exits the Fendi show at Thetre des Champs-Elysees in a Fuct cap on July 8, 2015 in Paris, France. ((Photo by Melodie Jeng/Getty Images))
A lone demonstrator waves a US Flag barred by the word "Cheating" in front of the United states Supreme Court on April 15, 2019 in Washington DC. - The US Supreme Court takes up Monday the government's refusal to register a trademark by a clothing line named "Fuct," and arguments should be, well, salty. ((Photo by Eric BARADAT/AFP/Getty) )
Los Angeles artist Erik Brunetti, the founder of the streetwear clothing company "FUCT," leaves the Supreme Court after his trademark case was argued, in Washington, Monday, April 15, 2019. Brunetti, who says the brand name is an acronym for "Friends U Can't Trust," is seeking help from the high court after he was denied a trademark by the U.S. Patent and Trademark Office because of a portion of federal law that says officials should not register trademarks that are "scandalous" or "immoral." ((AP Photo/J. Scott Applewhite))
FILE PHOTO: A detail of the shirt of Erik Brunetti, Los Angeles artist and streetwear designer of the clothing brand FUCT, is seen as he sits for a portrait in Los Angeles, California, U.S., April 7, 2019. (REUTERS/Patrick T. Fallon/File Photo)
LOS ANGELES, CA - APRIL 11: Erik Brunetti, artist, designer, director and founder of the lifestyle and clothing brand 'FUCT', poses for a portrait near his studio in downtown Los Angeles, California on April 11, 2019. Brunetti had won a case against the Patent and Trademark Office to register his trademark 'FUCT'. Previously, the office denied the registration attempt as they deemed the name "scandalous" or "immoral". Now the Trump administration has hauled the case all the way up to the Supreme Court, asking it to back up the original decision. ((Photo by Philip Cheung for The Washington Post via Getty Images))
Erik Brunetti, Los Angeles artist and streetwear designer of the clothing brand FUCT, sits for a portrait in Los Angeles, California, U.S., April 7, 2019. The Supreme Court will hear the U.S. Patent and Trademark Office's appeal of a lower court decision that the agency should have allowed Brunetti to trademark the "FUCT" brand name. Picture taken April 7, 2019. (REUTERS/Patrick T. Fallon)
The Trump administration had defended the provision, arguing that it encouraged trademarks that are appropriate for all audiences.
The high court's ruling means that the people and companies behind applications that previously failed as a result of the scandalous or immoral provision can re-submit them for approval. And new trademark applications cannot be refused on the grounds they are scandalous or immoral.
Justice Elena Kagan said in reading her majority opinion that the most fundamental principle of free speech law is that the government can't penalize or discriminate against expression based on the ideas or viewpoints they convey. She said Lanham Act's ban on "immoral or scandalous" trademarks does just that.
In an opinion for herself and five colleagues, both conservatives and liberals, Kagan called the law's immoral or scandalous provision "substantially overbroad."
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"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. It therefore violates the First Amendment," she wrote.
Kagan's opinion suggested that a narrower law covering just lewd, sexually explicit or profane trademarks might be acceptable.
The justices' ruling was in some ways expected because of one the court made two years ago. In 2017, the justices unanimously invalidated a related provision of federal law that told officials not to register disparaging trademarks, finding that restriction violated the First Amendment. In that case, an Asian-American rock band sued after the government refused to register its band name, "The Slants," because it was seen as offensive to Asians.
The case the justices ruled in Monday involves Los Angeles-based FUCT, which began selling clothing in 1991. Federal officials refused to register the brand's name, calling it "highly offensive" and "vulgar." Erik Brunetti, the artist behind the brand, and his attorney didn't immediately respond to a request for comment Monday.
The court's decision could result in an uptick in requests to the United States Patent and Trademark Office to register trademarks that would have previously been considered scandalous or immoral.
But Barton Beebe, a New York University law professor who has studied the provision the justices struck down and co-authored a Supreme Court brief in the case, said he thinks that's unlikely. Beebe said he doesn't believe there's a large, pent-up demand for trademark registration by people refused it previously under the provision.
A spokesman for the patent office, Paul Fucito, said the office is reviewing the decision.
The case is Iancu v. Brunetti, 18-302.