Supreme Justices spent the morning talking about an 'f word'
S E E D E D C O N T E N T
WASHINGTON — A bare majority of the U.S. Supreme Court seemed prepared Monday to allow a trademark for a California clothing brand that uses a form of the f-word. But the justices didn't appear very happy about the prospect.
Eric Brunetti chose a brand name to match the subversive, anti-establishment theme of his line of streetwear. The single four-letter word "Fuct" appears on his brand of T-shirts, hoodies, jackets and shorts.
But the federal government refused to issue him a trademark, citing a provision of law requiring the Patent and Trademark Office to refuse registration of proposed trademarks that are "scandalous" or "immoral."
Government attorneys concluded that Brunetti's brand name was phonetically equivalent to the past tense of what a Justice Department lawyer called "the paradigmatic profane word in our culture."
The trademark office considers a name to be scandalous if it is "shocking to the sense of truth, decency, or propriety" or "disgraceful, offensive, disreputable." Federal courts have said the prohibition also applies to terms that are "vulgar, lacking in taste, indelicate, and morally crude."
For that reason, several of the justices said during Monday's courtroom argument that the law amounts to a restriction on viewpoint, which isn't allowed under the First Amendment. Two years ago, the court struck down a parallel provision of federal law barring trademarks that disparage people or "bring them into contempt or disrepute."
As a result of that earlier decision, Justice Department lawyer Malcolm Stewart told the justices that the government would now likely narrow its application so that only terms that are obscene or shocking would be barred.
"How is it determined?" asked Justice Ruth Bader Ginsburg, "that a word is shocking? Is it a substantial part of the public? Would a composite of 20-year-olds find it shocking?"
Justice Elena Kagan said the law sweeps more broadly. "If Congress wants to pass a narrow statute, it can do that," she said. "You're asking us to uphold the statute based on a commitment to apply it more narrowly. That's a strange thing for us to do."
Stewart also said the law does not restrict speech, because Brunetti can call his clothing whatever he wants. He just can't get a trademark. "The law isn't a limitation on speech," Stewart said. "It's a limitation on a government benefit."
"You keep telling us this is a government benefit," Justice Sonia Sotomayor said. "But people pay for this and get certain legal rights."
Several members of the court were also concerned that the trademark office operates without a clear standard. Justice Brett Kavanaugh said the result is that the law is enforced inconsistently.
Justice Neil Gorsuch sounded a similar concern. "I can't see the rational line. Is it a flip of a coin?"
John Sommer, an Irvine, California, lawyer representing Brunetti, said in his written briefs that the government has issued a trademark for the brand name "FCUK," which that company insists stands for French Connection UK, a clothing line called "Fword," and an online dating site known as "WTF is up with my love life?!"
But Sommer didn't have much luck trying to persuade the court that the term Brunetti wants to trademark isn't a form of a notoriously dirty word.
"Aw, c'mon, be serious," Justice Samuel Alito said. "We know what he's trying to say."
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An interesting case, especially since the "F" bomb is not the actual name of the company being denied trademark.
Words matter for sure, but should any one word matter this much?
If profanity (or different "of profanity) are illegal, then in my expert legal opinion-- yes. If its illegal it doesn't matter how many words it is!
Actually I found it interesting to read the variety of different arguments the justices made-- they looked at the situation from different perspectives.
My first reaction was that I thought the trademark should be allowed because the law is vague but then I thought what if it were a misspelled version of the n word? I, personally wouldn't ever wear anything with vulgar language printed on it. It's beneath my dignity.
P.S; The first thing I noticed was the logo on the T-shirt. What struck me was not the question of whether the word was profanity or not, but rather the design. A blue oval with a four letter word beginning with "F"-- and the fact that it was in script.
Why is that important? Because IMO it too closely resembles the logo of another company:
I'm sure it was done on purpose as a form of satire, like Calvin pissing on a Ford, Chevy, or Dodge logo. I've seen shirts and stickers with many well known Trade Marks like the blue oval with different words and I don't think the blue oval is part of the FUCT logo the shirt is just one of their products and they might have a Chevy Bowtie shirt also.
In this context, it seems like the kind of thing that you would expect government to be able to regulate. "Fuck the Draft" was allowed because it was political speech. I think it's harder to argue that (though not impossible) for a clothing brand.
I think the answer is the old "community standard" thing. It certainly isn't news to people that the F-word is considered profane, and arguably obscene (which typically gets different scrutiny).
I think the answer is the old "community standard" thing. It certainly isn't news to people that the F-word is considered profane, and arguably obscene (which typically gets different scrutiny).
But...which community?
In any event that's probably not relevant here because this is not about the general principles of free speech but rather its about patent and trademark law.
"The trademark office considers a name to be scandalous if it is "shocking to the sense of truth, decency, or propriety" or "disgraceful, offensive, disreputable." Federal courts have said the prohibition also applies to terms that are "vulgar, lacking in taste, indelicate, and morally crude." Reminds me of "Juicy" written across peoples ass, talk about vulgar, lacking in taste, indelicate, and morally crude.
Seem's that would have precluded the trademarking of the "Trump" brand name... talk about vulgar, lacking in taste and morally crude...
But seriously, if they can allow WTF as part of a trademark, rejecting Fuct is fuct up.
I don't know why they allowed WTF maybe it was long enough ago that they didn't know what it meant.
Interesting. Supreme beings are discussing something right up their alley.
For his part in the Starr report, Kavanaugh wanted to stress the sexual aspects. The word variation must flummox to him.
Besides, ( that word ) has become a more commonly used vernacular. The president even uttered ( it ) a couple of times during his popularity rallies.
Ah, better for them to discuss ( that word ) than child separation, voter suppression or a myriad of other topics.
The word Fuct aside, in this day and age is the actual word Fuck vulgar, immoral, obscene, etc anymore? I know in the military community it's used so often that it's basically lost the ability to offend.
In Scotland it's used as a "hesitation device" like "um" or "er". I must have heard it 300 times from one taxi driver as he pointed things out around the city. And half the time it was the only word I understood but it was pronounced more like 'fookin'.
Lol
"Sounds Like", Is Lame when it comes to the "First Amendment" !