“It is not expected that it will be necessary to refer to vulgar terms during argument,” Sommer wrote. “If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed.”
A free-speech fight over a trademark might sound familiar. Two years ago, when an Asian American band, the Slants, supported by a professional football team, the Washington Redskins, challenged the law against registering “disparaging” trademarks, the court ruled it was unconstitutional.
“Giving offense is a viewpoint,” wrote Justice Samuel A. Alito Jr. “We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’ ”
Brunetti is challenging a neighboring provision in the law, which prohibits the registration of “immoral” or “scandalous” trademarks. And his odds look good.
The U.S. Court of Appeals for the Federal Circuit ruled in his favor in late 2017, citing the Supreme Court’s decision striking down the “disparaging” provision.
Brunetti’s trademark met the definition of scandalous, a unanimous panel of the court decided. But it decided that the provision is unconstitutional.
“There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace,” wrote Judge Kimberly A. Moore. “The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public.”
The government argues that the appeals court got it wrong. Registering a trademark is a benefit, Solicitor General Noel J. Francisco wrote in his brief, not a restriction on speech. Brunetti has called his clothing line FUCT since 1990 and may continue to do so.
Brunetti is not being penalized for his viewpoint, Francisco says. The government’s decision is based on content and evidence that the trademark “would be perceived as equivalent to the vulgar word for which it is a homonym.”
But Brunetti said that argument is undercut by a decision by the U.S. Patent and Trademark Office review board that takes into account his speech, referencing his “assaults on American culture [that] critique capitalism, government, religion and pop culture” and referring to his “extreme nihilism.”
Sommer wrote in his brief that the law’s immoral and scandalous clauses “prohibit registration of trademarks involving politics, religion, social issues, ethnicity, the role of women, drugs, violence, humor, double entendres, slang, patriotism, profanity, and excretory and sexual references. Any mark that is likely to offend some part of the public is to be refused.”
Brunetti said in an interview that he considers FUCT to be part of his artistic brand. He began using the term in black-and-white print ads before he even was sure of what he was going to be selling.
“It stands for an acronym — Friends U Can’t Trust,” Brunetti said. “We like the fact that the logo has a very corporate look, corporate aesthetic, but that it can be pronounced in a very different way.”
Brunetti applied the term to his clothing line, which he said came from his skater background.
GQ magazine wrote that the brand “introduced the oversized, super-baggy skate pant, a silhouette that has conquered every corner of the fashion world. And they established a hard-edged, outlaw ethos that streetwear brands have sought to emulate for decades since.”
Francisco warns the court that striking the scandalous prohibition would mean “similar exclusions of lewd or vulgar speech from other government-sponsored activities, would be called into doubt.”
But the government has received no support from outside interests at the Supreme Court, while Brunetti is supported by groups such as the Pacific Legal Foundation, the Cato Institute and the American Civil Liberties Union.
Simon Tam, founder of the Slants, filed a brief on Brunetti’s behalf, as well.
“In 1905, when this provision was enacted, the First Amendment was an infrequent basis for litigation,” and “the government routinely restricted” offensive speech, Tam’s brief said.
“Today, by contrast, it is a staple of First Amendment jurisprudence that speech may not be restricted for the purpose of preventing listeners from being offended.”
Moreover, Brunetti argues, the prohibition is so arbitrarily enforced that it must be considered unconstitutionally vague.
Two New York University law professors, Barton Beebe and Jeanne C. Fromer, filed a brief on Brunetti’s behalf that says decisions from the Patent and Trademark Office defy logic.
The duo reviewed 6.7 million trademark applications filed from 1985 through 2016. They found that office’s lawyers okayed the trademark “F U 2” for apparel, but not “F.U.”
“Obscenicons,” “strings of symbols . . . used in comic books to represent obscenities,” were treated differently, too.
“In 2009, the PTO issued no immoral-or-scandalous refusal to the mark $#!+ for use in connection with novelty gift items and apparel,” the professors’ brief said. “By contrast, the PTO issued immoral-or-scandalous refusals to the marks NO $#!+ and APE $#!+, both filed only a few years” later.
Indeed, the professors found more than 100 instances in which the office refused a trademark registration because it was scandalous and because it was too close to one already accepted.
Sommer said that if his client wins, the public should not worry about being confronted with more vulgarity. Retailers do not want to offend their customers by carrying such brands, he said.
Indeed, Brunetti says FUCT products are no longer available in the “high-end boutiques” that used to carry his line.
“You can only buy our products online,” he said.