There is a slim chance that one of the august justices of the US Supreme Court will utter an extremely dirty word during oral arguments on Monday, April 15.
That’s when the court is set to consider a dispute over a trademark for the clothing company FUCT—pitting its founder Erik Brunetti against the government’s patent and trademark office (USPTO).
It is slightly more likely that the hearing will be tame, with no swearing. As Brunetti’s brief to the court (pdf) explains in a footnote, “It is not expected that it will be necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed.”
Yet the outcome will determine just how free speech can be. 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.
FUCT is an acronym for Friends U Can’t Trust, according to Brunetti, who has been using the name since 1990. GQ calls FUCT an “OG [original gangster] streetwear brand,” and even the USPTO, which denied his trademark application, admits that the brand has a cult following.
In 2011, when Brunetti applied for federal registration of the mark, the request was first granted—then, unusually, abruptly withdrawn and denied “on the ground that the mark [FUCT] would be perceived as equivalent to the vulgar word for which it is a homonym,” as the government explains in its petition to the Supreme Court. (NB: the word is “fucked.”)
Brunetti is challenging this argument, saying his brand “focuses on questioning authority: the assumptions of society, the government, and accepted wisdom” and that the USPTO is chilling free speech. He points to the 2017 US Supreme Court decision in Matal v. Tam (pdf), as evidence that the government’s assessment of marks as “scandalous” is overreach and chills free speech.
Tam’s case involved the denial of a trademark registration for the rock group “The Slants,” formed by Simon Tam. The rocker chose this name to “reclaim” the derogatory term used to disparage East Asians. Tam was denied federal registration for his mark precisely on the grounds that it was disparaging. When his case made its way to the nation’s highest court, however, all eight sitting justices at the time agreed that the USPTO’s denial limited free speech.
Tam, it so happens, is just about to release his take on his epic eight-year legal battle with the government in a memoir called Slanted on April 30. His account reveals just how complex this matter is (and also offers a lot of insight on the struggles of being a musician and being the child of immigrants juggling multiple identities). Tam is a social justice activist and his goal was to bar the government from defining his identity with its determination of what is racist. But fighting for freedom of speech means fighting for the freedom of those whose speech didn’t please Tam either, it turns out.
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.
The request to consolidate the cases was denied, yet Tam’s ultimate victory was bittersweet because the court’s ruling also ensured that the Redskins’ trademarks would remain valid. This led to a flurry of accusations that Tam had opened the floodgates for hate speech.
In his book, Tam acknowledges that language can be damaging or empowering—and that the same words can have very different effects depending on the context. But he argues that in the big picture, his case was about freedom from government intrusion and the right of individuals to identify as they choose. From his point of view, government attorneys were attempting to define Asian-American identity in the US, and he strongly objected.
And despite the criticism from some, many free speech advocates saw Tam’s win as a victory for the First Amendment. It’s the kind of issue that unites liberals, libertarians, and conservatives, which is probably why the high court unanimously found for The Slants, whose band name is now a registered federal trademark. But the Supreme Court didn’t address the Lanham Act’s “Scandalous Clause” in Tam’s case, just disparagement. 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.
A vestige of the Victorian era
The case of The Slants’ trademark registration was decided while Brunetti’s appeal of his trademark denial was being considered by the Ninth Circuit Court of Appeals. The Tam decision seemed to indicate that the USPTO couldn’t deny Brunetti’s registration on the grounds stated, that court found. The government then applied for Supreme Court review and Brunetti urged the court to consider the case in order to clarify the state of the law.
Tam has filed an amicus brief supporting Brunetti (pdf). In it, his counsel argues, “The only interest advanced by the ban on registering immoral trademarks is the now-impermissible Victorian aim of insulating the public from offensive speech.” The brief explains:
The ban on registering “immoral” or “scandalous” trademarks is a relic of the Victorian era, when judges and other government officials were often enlisted to scrub public discourse of anything that might offend the most prudish sensibilities…Needless to say, that world is long gone. We recognized long ago that Americans hold extremely diverse views of what is moral and what is not, and that government officials have no business restricting non-obscene speech to enforce one view of morality over another. Today…it is a staple of First Amendment jurisprudence that speech may not be restricted for the purpose of preventing listeners from being offended.
Brunetti, for his part, points out that the Lanham Act’s “Immoral and Scandalous Clauses” prohibit registration of trademarks “involving politics, religion, social issues, ethnicity, the role of women, drugs, violence, humor, double entendres, slang, patriotism, profanity, and excretory and sexual references.” He claims that the government refuses to register “any mark that is likely to offend some part of the public,” which in his view is “clearly unconstitutional.”
The USPTO’s somewhat random distinctions are judgments that limit free speech, Brunetti argues. 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. “Profanity usually expresses a viewpoint: at minimum, of non-compliance with societal mores,” he argues.
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.
Friends with benefits
The government’s intellectual property arm, headed by Andre Iancu, under secretary of commerce for intellectual property and director of the USPTO, says free speech isn’t a problem here. It has a somewhat ironic argument that minimizes the value of a registered trademark. 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.
Iancu’s brief argues that trademark registration isn’t really a big deal. It simply confers additional benefits to those who register for it. But because federal registration doesn’t create a mark—it’s an affirmation of an existing mark that helps intellectual property holders when protecting their holdings—it should not subject to the kind of constitutional scrutiny that other government actions are.
Ultimately, whether or not FUCT is approved by the feds, Brunetti’s trademark exists in the places he has used it, and he’s free to police his intellectual property without the registration, the government argues. ”The scandalous-marks provision, however, is not a restriction on speech, but a condition on government benefits… the provision renders certain marks ineligible for registration not because they are thought to convey offensive ideas, but because they reflect an offensive mode of expressing whatever idea the speaker wishes to convey,” the government’s brief (pdf) states (emphasis in original).
This argument seems unlikely to succeed, given the 2017 ruling in Tam. Although the high court broaches no profanity in its discussions, it nonetheless has protected Americans’ right to offend and to use language creatively and critically. So, chances seem to be good that Brunetti will emerge from this legal battle victorious and eligible for federal trademark registration and that the USPTO will probably be, ahem, basically FUCT.