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Go ahead and register that vulgar trademark—it’s legal again

Go ahead and register that vulgar trademark—it’s legal again
[Photo: frankie cordoba/Unsplash]

The Supreme Court ruled on Monday in favor of fashion brand Fuct, saying a 1905 law that banned “immoral or scandalous” trademarks is unconstitutional.

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The U.S. Patent and Trademark Office refused to let Fuct founder Erik Brunetti register the trademark, saying it was too “vulgar” to be permitted under the law, known as the Lanham Act. While Brunetti’s lawyers argued that the brand name should be sounded out as “F-U-C-T,” the brand clearly embraces pronouncing it as a single word.

“Fuct is free speech,” the clothing line posted on its website after the ruling. “Free speech is Fuct™.”

All nine Supreme Court justices agreed that the law enabled the government to discriminate against particular viewpoints. For example, Justice Elena Kagan wrote in the court’s majority opinion, the Patent and Trademark Office wouldn’t allow marijuana-related trademarks like “You can’t spell healthcare without THC” and “Marijuana Kola,” but it was fine registering trademarks for groups like DARE. Similarly, it allowed faith-related trademarks in certain contexts, like for T-shirts for the Christian faithful, but it wouldn’t allow a “Madonna” brand of wine.

“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,” Kagan wrote. “It therefore violates the First Amendment.”

In a concurring opinion, Justice Samuel Alito seemingly urged Congress to pass a narrower law banning ” vulgar terms that play no real part in the expression of ideas,” which he said could pass constitutional muster and keep brands like Fuct from registering their names.

“The registration of such marks serves only to further coarsen our popular culture,” he wrote. “But we are not legislators and cannot substitute a new statute for the one now in force.”

Justices Stephen Breyer and Sonia Sotomayor argued that while the ban on “immoral” trademarks is unconstitutional, since it discriminates against particular viewpoints on social issues, the court could allow the ban on “scandalous” trademarks to stay in place and keep vulgar and obscene brand names from being federally registered.

The court previously ruled against another provision in the law that banned trademarks that “disparage” a person or group, in a case brought by the Asian American band The Slants. The Patent and Trademark Office had refused to register the band’s name as a trademark, saying it was a disparaging ethnic slur.

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