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Ruling in Favor of ‘FUCT' Fashion Brand, Supreme Court Says Scandalous Trademarks Law is Unconstitutional

The case required some verbal gymnastics from justices who avoided using the brand's name in court

The Supreme Court has struck down a section of federal law that prevented officials from registering "scandalous" or "immoral" trademarks, handing a victory to a Los Angeles-based fashion brand.

The high court announced its decision Monday in the case involving Los Angeles artist Erik Brunetti's FUCT streetwear brand.

Lawyers for the brand had argued that the century-old provision should be struck down as an unconstitutional restriction on speech.

The Trump administration had defended the provision. It argued that it encouraged trademarks that are appropriate for all audiences.

Justice Elena Kagan wrote for a majority of the court that 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," she wrote.

Kagan's opinion suggested that a narrower law covering just lewd, sexually explicit or profane trademarks might be acceptable.

The name itself required verbal gymnastics from the justices, who tried to avoid saying the name of the brand during their discussions.  Chief Justice John Roberts called it the "vulgar word at the heart of the case." Justice Samuel Alito referred to it as "the word your client wants to use."

Justice Stephen Breyer chose "the word at issue."

During their hearings, justices pointed out that Brunetti and others like him who are denied trademark registration under the "scandalous" provision can still use the words they wanted to register for their business, nonprofit or brand. The clothing lines just don't get the benefits that come with registering a trademark.

For Brunetti, that would largely mean a better ability to go after counterfeiters who knock off his designs.

The latest 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. He said most of the trademarks refused registration under the provision recently were for putting words on clothing.

That was what happened in the case the justices ruled on. Los Angeles-based FUCT began selling clothing in 1991. 

Monday's 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.

Copyright AP - Associated Press
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