Supreme Court

The Supreme Court Says Your Filthy Trademark Is Protected by the First Amendment

A 6-3 ruling says that the First Amendment protects brand names that are considered “immoral” or “scandalous.”

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The Supreme Court has cleared the way for you to go get FUCT. In a 6-3 ruling, the justices determined that a law prohibiting registration of "immoral or scandalous" trademark names violates the First Amendment.

The case, Iancu v. Brunetti, pitted a clothing manufacturer of the aforementioned brand name "FUCT" against the U.S. Patent and Trademark Office (PTO), which refused to accept the trademark registration because of its vulgar nature. Erik Brunetti fought the decision, and today the justices ruled in his favor.

The majority decision, written by Justice Elena Kagan and joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Neil Gorsuch, and Brett Kavanaugh, ruled that this part of the Lanham Act is unconstitutional because it discriminates on the basis of viewpoint. This ruling builds on a decision from 2017, Matal v. Tam, in which the Supreme Court ruled for similar reasons that the PTO couldn't reject the trademark for the band name The Slants as being offensive or disparaging.

The Tam ruling is invoked and quoted extensively in this ruling. Here's Kagan:

So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society's sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. "Love rules"? "Always be good"? Registration follows. "Hate rules"? "Always be cruel"? Not according to the Lanham Act's "immoral or scandalous" bar.

Kagan further explains that under the court's interpretation of the Lanham Act, the PTO regularly rejects trademarks that appear to promote drug use—"Marijuana Cola," "Ko Kane," and "Bong Hits 4 Jesus"—and accepts trademarks that condemn drug use. That's not a viewpoint-neutral position on what is immoral or scandalous, she concludes. And therefore, it's in violation of the First Amendment.

Justice Samuel Alito concurred but wanted to add to his concerns here about the current pressures to discriminate on the basis of viewpoint in the United States and elsewhere:

Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor put out a trio of opinions that dissented in part but also concurred in part. In Robert's dissent, he argues that he believes the definition of "scandalous" could be narrowed to bar trademarks that are "obscene, vulgar, or profane" without striking that part of the law down entirely. Breyer wrote that he did not see how a statute prohibiting the trademarking of brands with obscene or vulgar words would be viewpoint discrimination. And Sotomayor worried that the broadness of the majority ruling means "the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable." All three justices argue that "scandalous" can be read by the courts to merely forbid the trademarking of the profane and vulgar, and does not need to be interpreted as broadly as the majority decision does.

But to Alito's point, we're increasingly seeing a world where some people are purposefully classifying speech as "violence" when they disagree with the content of that speech. As the majority notes, the reason "Bong Hits 4 Jesus" was rejected was because the PTO believed that Christians would be "morally outraged" by the idea that Jesus supported drug use, that the concept itself was "obscene."

Furthermore, the marketplace offers consumers plenty of ways to react to products with names or labels they find obscene. Consumers can simply decline to purchase them, and if that happens, stores would likely decline to carry them for long.

Previously, Reason's Jacob Sullum detailed some of the contradictory and confusing trademark rulings that have come out of the PTO 's analysis of what constitutes "immoral or scandalous" language or imagery.

Read the Supreme Court ruling here. Below, ReasonTV on the Matal v. Tam case and The Slants:

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  1. “Always be cruel”

    Who would trademark that slogan? Bizarro-world Elvis?

    1. Ah, the one with the goatee.

      1. Not only are such trademarks decidedly inappropriate, but they pose a direct threat to social order, which is why this ruling is so difficult to comprehend. There is no clear rationale why the government can decide, for example, which forms of “parody” cross the line into criminal conduct, but not which forms of immorality do the same. See, for example, the documentation of our nation’s leading criminal “satire” case at:

        https://raphaelgolbtrial.wordpress.com/

  2. From the Sullum link:

    “In a First Amendment case the Supreme Court considered this week, the U.S. Patent and Trademark Office (PTO) refused to register Fuct, the name of a clothing line, deeming it “scandalous.” Yet the PTO had no such objection to F’d Up, Phat Phuc, FCUK (which has been registered as a trademark eight times), FVCK (registered as part of 11 trademarks), or FWord (although F-Word! somehow was beyond the pale). The PTO’s trademark database also includes ass (which has been registered more than 200 times) but not asshole or A-Hole Patrol (both rejected), crap (registered more than 70 times) but not shit, Cum Together (although the PTO rejected another application for the same name), and bitch (registered more than 150 times) but not Kickabitch (rejected). Word Prostitute, Grammar Nazi, Dago Swagg, and Wild Injun met the PTO’s standards, but The Christian Prostitute, Coffee Nazi, Dago Mary’s, and Urban Injun did not.”

    1. I just trademarked: “F the SCOTUS!” and “RBG = CUNT”

      1. You realize you have to have some sort of product or service associated with the mark?

      2. RGB agreed that that both those would be o.k. (as long as you actually had a product or service to associate with them). It was Sotomayor, Roberts and Breyer who dissented.

        Face it, RBG sometimes rules on the libertarian side of things. The clock strikes 12 twice a day. On the other hand, Kavanaugh and Thomas most frequently rule on the authoritarian side.

        1. Thomas tends to follow the Constitution though, which limits the extent to which the authoritarian side can press their case.

          1. For the most part. I kind of cut him some slack though even when he’s being kind of a dick, because I can imagine him being really good at seeing somebody doing something stupid and slapping them up side the head while saying “What the hell’s wrong with you boy?” He just tends to be pretty common sense about things.

            He’s stodgy to be sure, but doesn’t ever do anything too crazy. All things considered there are a LOT worse judges out there.

  3. Consumers can simply decline to purchase them, and if that happens, stores would likely decline to carry them for long.

    Wield my own tiny little club when the government’s is so much heftier?

    1. Speak for yourself, I don’t need the government to wield a big club.

      Can I trademark that?

    2. I can’t make someone not wear them though. I need the cops to do that.

  4. Who fucking dissented?

    “Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor put out a trio of opinions that dissented”

    Ah…

    1. They really just kinda sorta dissented.

  5. I observe that Comptown records registered the trademark “N. W. A.” for various CDs effective Christmas 2001 (Serial no. 76135762).

    Just to put myself on their lists, I looked up all sorts of fun words in the USPTO database and found a lot of recent applications using bad words. Maybe the Supreme Court encouraged them.

  6. I guess the buzz-killing news is that the Supremes seem to be open to a *narrower* law aimed specifically at vulgarities and profanities like __________, __________, _____ __, ____ __ ____, and so forth.

  7. >>>could be narrowed to bar trademarks that are “obscene, vulgar, or profane”

    hey Roberts which decade’s standard for those words will you use? how is FUCT any of those?

    1. Just trademarked: “Roberts is Shit”

    2. which decade’s standard for those words will you use?

      And which language/culture? Plenty of non-Anglo words are “obscene, vulgar, or profane”.

  8. Sweet.
    [trademarks Crusty]

  9. So; the word duck is 75% obscene?
    At least some of the PTO has been exposed to phonics – – – –
    I would love to be in some of the meetings discussing “gay”. Were the ‘gay nineties’ obscene at the time? Just no one knew?
    Like a thermos keeping hot drinks hot, and cold drinks cold, how do they know?
    The next time I get really bored, I am going to read the dissenting opinions.

  10. Scalp ’em, swamp ’em
    We will take ’em big score
    Read ’em, weep ’em, touchdown
    We want heap more!

    Fight on, Fight on
    ’til you have won
    Sons of Washington
    Rah! Rah! Rah!

    Hail to the Redskins
    Hail victory
    Braves on the warpath
    Fight for ol’ Dixie!

    I guess it won’t be necessary to change the name of the team to something like “The Confederate Rebels” just yet.

    1. Washington Swampthings

      1. They could go even lower: “Washington Congressthings”.

    2. You know who else hailed victory?

    3. “Redskins” will continue to be frowned upon.
      “Confederate Rebels” will cost you your job and position in polite society.

      1. I seriously don’t get the hating on Indian mascots thing.

        I’m part buffalo fucker myself, on both sides of my family. The only reason I tan and can’t grow a good beard is because of all of my native blood. It may be in the vein of us promoting the “noble savage,” but all those mascots came about because of respect the white men had for the fighting spirit of the Indians.

        Back in the day one might have called an Indian a savage, but there were VERY few who ever would have called men from most tribes cowards. Now that we don’t really call them savages anymore, I especially don’t see any harm in holding up the bravery of native warriors as a negative thing.

  11. At first, I didn’t realize that FUCT was one word, I thought somebody really had it in for Connecticut.

    1. I have it in for Connecticut.

    2. lol nobody likes Connecticut

  12. Feast Upon Cactus Thorns was a punk band here about 20 years ago.

  13. This is actually good. Gummit have no place deciding for society what is/is not “acceptible speech”.

    besides, how long will it be before some smart alec guy decides to register a trade mane/mark that pokes fun at the “religion of peace” (maybe call something “the religion of peas”?) and provokes the ire and wrath and threats of the posers who claim to be “incensed” or “offended” at it all, and tries to sue for some inane reason?

  14. I don’t see how the 1st Amendment applies. Trademark is all about enforcing exclusivity. If there’s a trademark, that bars its use in trade by any other but the holder. I don’t see how prohibiting someone from keeping others from using “FUCT” under federal law would be abridging anyone’s freedom of the press. (I don’t see how not prohibiting others from using it would abridge their freedom of the press either, although that argument could be made, as part of arguing against trademark altogether.)

    1. Barring registration of a trademark effectively bars the owner(s) of that business from using that as their business name. That infringes freedom of speech. That was well established in the Slants decision, so all this decision does is reaffirm precedent.

      In cases like this, where an agency just ignores a recent decision against themselves, why can’t the SC assess court costs and the plaintiff’s costs against the officials responsible (like garnishing their paychecks)? It would be fair to the victims of officials who ignore the Constitution – which requiring them to pay to sue isn’t – more fair to the taxpayers who are generally on the hook for the court costs, it would discourage agencies from knowing violations, and that would greatly cut down on the number of such cases coming through the courts.

  15. America – Fuck Yea!

    …is that one taken?

    1. It’s not in the federal trademark database, but there might be some kind of product which uses that name and established a trademark through usage.

      Maybe this cap?

      https://www.amazon.com/exec/obidos/ASIN/B01ERW52PE/reasonfoundation-20/

      1. But wait – “This item is not affiliated with any existing intellectual property or trademark.”

  16. Does this throw the whole FCC book of regulations about what can’t be said on TV or radio into the Potomac?

    1. it’s about time

  17. It’s not in the federal trademark database, but there might be some kind of product which uses that name and established a trademark through usage………………….gocash7.com++
    Don’t copy “++ ” with web addresst

  18. F.U.C.T.’s trademark request wasn’t even vulgar. The owner says it stands for Friends You Can’t Trust, and is pronounced eff-you-see-tea. It was banned because it sounds like the past tense of a vulgar word.

    But it seems like the Supes went one step further than that, and said you can go ahead and register actual vulgar trademarks now.

  19. This opens up so many possibilities…

    Muhommad’s Marijuana Munchies

    Fag Hag Handbags

    Beaner Brand Beans (What else, duh!)

    No More Chink Eye Eyedrops

    Suck My Chocolatey Dick Flavored Condoms

    I’ll have to keep working on this…

  20. For the most part.
    I kind of cut him some slack though even when he’s being kind of a dick, because I can imagine him being really good at seeing somebody doing something stupid and slapping them up side the head while saying “What the hell’s wrong with you boy?”

    He just tends to be pretty common sense about things.
    https://gamerengine.net/

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