25 June 2019

Patently Fuct

US Supreme Court strikes down ban on 'immoral' or 'scandalous' trademarks, ruling against US patent office attempt to block profane-sounding Fuct brand.

By Dr David Cowan


In the patent case of Iancu v Brunetti, the Supreme Court has struck down a century-long US ban on trademarks using “immoral” or “scandalous” words and symbols, ruling in a case involving the Fuct clothing brand.

First amendment issue

A Fuct company statement read, “Today is a good day for Americans.  The U.S. Supreme Court has taken the federal government out of the business of deciding questions of morality.” The court ruled that a 1905 law violates constitutional free speech rights. Los Angeles streetwear designer Erik Brunetti was refused by the US Patent and Trademark Office when he attempted to trademark his brand name Fuct. The justices upheld a 2017 lower court ruling striking down the law as a violation of the US Constitution’s First Amendment right to free expression. The decision removes the authority of government officials to bar federal trademark registration for profane language or sexually graphic images. The US administration had warned that invalidating the law would unleash a torrent of extreme words and sexually graphic images on the marketplace. The original 2011 trademark application for Fuct was rejected by the Patent and Trademark Office because the brand name when spoken sounds like a profanity. The office stated that Mr Brunetti’s products contained sexual imagery, misogyny and violence. Mr Brunetti sought a trademark to ward off counterfeiters. He said the brand’s name is clever because of its association with the profanity and as an acronym meaning “Friends U Can’t Trust.” John R Sommer was his attorney who argued the case in the Supreme Court.


The US Court of Appeals for the Federal Circuit, which specializes in intellectual property law, ruled in Mr Brunetti’s favour in 2017. The Supreme Court followed the line it took in 2017 when it struck down a similar law forbidding the registration of “disparaging” trademarks in a case involving an Asian-American dance rock band called The Slants, a name federal trademark officials deemed offensive to Asians. Mr Brunetti’s brand products include terms “The world is fuct,” “We are fuct,” and “Fuct is free speech, free speech is fuct.” The name led to lawyers in court to tread carefully, and doubtless there was much smirking in the court room. Justice Department lawyer Malcolm Stewart used the term “the equivalent of the past participle form of the paradigmatic profane word in our culture." Justice Stephen Breyer called it “the word at issue.”

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