The US Supreme Court has just decided Iancu v. Brunetti (pdf), a First Amendment case about “immoral or scandalous” trademarks, ruling that the US Patent and Trademark Office (USPTO) violated an entrepreneur’s free-speech rights when it denied trademark registration for his clothing brand FUCT.
The majority opinion, written by justice Elena Kagan, follows the 2017 ruling in Matal v. Tam, which held that the USPTO could not deny an Asian-American band called The Slants a trademark based on its interpretation that the name was a racist slur and thus a “disparaging” mark. With its holding in the FUCT brand case, the high court has answered remaining questions about just how far free speech extends in the context of trademarks.
The answer seems to be very far indeed.
The USPTO can’t “disfavor certain ideas,” according to Kagan. Thus, the government cannot deny trademark registration to marks it considers immoral, scandalous, or disparaging on the basis of the 1946 Lanham Act. To do so is to discriminate based on viewpoint, she said.
The First Amendment is meant to protect precisely the kind of speech that people generally view as offensive. What kind of specific language is offensive is a notion that shifts over time. It can depend on who is speaking and in what context. It is not the government’s job to police speech through its intellectual property arm, the court ruled. As such, the USPTO can’t deny trademarks it considers immoral, which undermines the US constitution’s speech protections.
FUCT is an acronym for Friends U Can’t Trust, according to Erik Brunetti, the artist and designer who has been using the name since 1990. GQ calls FUCT an “OG [original gangster] streetwear brand,” and even the USPTO acknowledged the brand’s cult following. Brunetti’s mark was deemed offensive by USPTO because he “critiqued capitalism, government, religion and pop culture” and the government was concerned that some Americans would be offended by a non-conformist position. Brunetti’s attorneys argued that the USPTO was restricting the very kind of speech that the First Amendment is meant to protect.
Both Brunetti and the USPTO urged the high court to review the case to clear up any confusion after Matal v. Tam. Now, the matter is settled and the USPTO can probably expect a bunch of salty trademark registration applications in the future, given Kagan’s conclusion: “The ‘immoral or scandalous’ bar is substantially overbroad. 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.”