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Barring trademarks that include immoral or scandalous language is an unconstitutional restriction of free speech, the United States Court of Appeals for the Federal Circuit ruled Friday.
Eric Brunetti founded the fuct clothing brand in the 1990s, but decades later was denied a trademark for the label because the U.S. Patent and Trademark Office found it violated the Lanham Act’s ban on immoral or scandalous matter.
“The examining attorney reasoned that FUCT is the past tense of the verb ‘fuck,’ a vulgar word, and is therefore scandalous,” explains circuit judge Kimberly A. Moore in the Friday decision. Brunetti appealed to the Trademark Trial and Appeal Board, which denied to reconsider his application on the same grounds. The examining attorney and board turned to Urban Dictionary and a Google Images search in reaching the decisions.
“The Board noted that the word ‘fuct‘ is defined by Urban Dictionary as the past tense of the verb ‘fuck’ and pronounced the same as the word ‘fucked,’ and therefore found it is ‘recognized as a slang and literal equivalent of the word “fucked,”‘ with ‘the same vulgar meaning,'” writes Moore. “Based on the examining attorney’s Google Images search results, the Board stated Mr. Brunetti used the mark in the context of ‘strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny,’ with a theme ‘of extreme nihilism — displaying an unending succession of anti-social imagery of executions, despair, violent and bloody scenes including dismemberment, hellacious or apocalyptic events, and dozens of examples of other imagery lacking in taste.'”
Brunetti then took his case to federal court, arguing that fuct isn’t vulgar — but, even if it was, barring immoral marks is unconstitutional.
The federal circuit agreed with him on the second argument — which wouldn’t have been possible until June, when the U.S. Supreme Court overturned case law that held restricting someone’s right to have a trademark didn’t necessarily restrict that person’s free speech. In that case, involving rock band The Slants, the court found the USPTO’s denial of trademarks had a chilling effect on speech.
While the court finds the use of vulgar trademarks in commerce discomforting, it acknowledges that similarly offensive images and words have secured copyright protection.
“There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law,” writes Moore. “No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case.”
The full decision is posted below.
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