The U.S. Supreme Court held G-rated arguments over an R-rated word on Monday while debating whether “FUCT” is too scandalous to trademark.
The eight-year saga of an L.A.-based clothing line founded by artist Erik Brunetti came to Washington, D.C., as justices heard his case against the United States Patent and Trademark Office.
It started in 2011, when Brunetti’s trademark application for FUCT—which, according to CNN, stands for “Friends You Can’t Trust”—was denied on the grounds that it violated the Lanham Act. (Representatives for the brand did not respond to The Daily Beast’s request for comment.)
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A provision of the Lanham Act, which was passed in 1946, says that “scandalous or immoral” words cannot be trademarked, as names that cause offense should not be endorsed by the government.
Unlike George Carlin’s famous “Seven Dirty Words” monologue, which was referenced many times in court on Monday, there is no tangible list of what can and cannot be trademarked. It is up to the U.S. Patent and Trademark Office to arbitrate what is appropriate.
In the 2017 case Lee v. Tam, the court ruled in favor of an indie pop band The Slants, who were denied a trademark for their name because the antiquated slur for Asian-Americans “disparaged” a race of people.
The all-Asian music group argued that their name reclaimed the word—and the highest court in the land unanimously agreed that the trademark should be granted.
Simon Tam, founder of The Slants, filed an amicus brief in support of Brunetti. He called the Lanham Act “Victorian” and in direct opposition to modern interpretations of the First Amendment, where “speech may not be restricted for the purpose of preventing listeners from being offended.”
“I think we would be in a lot of trouble if all of our laws reflected the morality of the 1930s, which is when the Lanham Act was written,” Tam, who just released a book documenting his experience navigating the Supreme Court, told The Daily Beast. “Our society and our laws have been changing since then, and it’s past time for our trademark office to reflect these kinds of updates.”
“These prohibitions have been around for 70 years,” Rebecca Tushnet, a professor at Harvard Law School, told The Daily Beast. “The Supreme Court has signaled First Amendment challenges to a lot of things that are more welcome than they used to be.”
During Monday’s arguments, the Department of Justice’s Malcolm L. Stewart spoke of how the U.S. Trademark Office exists to “protect unwilling viewers from material they find offensive.” He also said that if the “scandalous” clause were struck down by the court and word FUCT was granted a trademark, then “sexually explicit images” could ostensibly be granted the same protection, too.
Stewart claimed that FUCT “would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language.”
But Justice Ruth Bader Ginsburg countered that the word means different things—and has varying levels of offensiveness—depending on its audience.
Citing the streetwear line’s target customer, she asked, “Considering what’s involved in this case, if you were to take a composite of, say, 20-year-olds, do you think... they would find it shocking?”
While the patent office was denying Brunetti’s application for a trademark, the government was not telling him he could not sell his clothing altogether. As Justice Stephen Breyer said, “This is simply not forbidding use of any word in any place, but you just can’t put a little R next to it.”
Brunetti’s lawyer John Sommer argued that calling FUCT “scandalous” violates his client’s First Amendment protections, and that the U.S. Trademark and Patent Office is engaging in “viewpoint discrimination” by decreeing morality.
”A substantial number of Americans think that gambling, drinking, eating some types of meat, eating meat at all is immoral,” Brunetti said. “There’s no way to make a sensible determination between those that come in and those that must stay out.”
The lawyer went on, “Steak n' Shake can’t be registered because a substantial portion of Americans believe that eating beef is immoral.”
Susan Scafidi, a fashion law professor at Fordham University, believes that Brunetti’s case is “cleaning up the bits” left over after Lee v. Tam.
“During today’s arguments, the government was hard-pressed to define a difference between ‘disparaging,’ which was dealt with in Tam, and Brunetti’s closely-related issue of ‘scandalous’ marks,” Scafidi said. “It almost sounded like this case was pre-decided in some ways. Truly, it’s a struggle to determine what is in fact scandalous today without engaging in viewpoint discrimination.”
Scafidi also pointed out that the clothing label French Connection UK has a trademark for its acronym FCUK, which sure looks a lot like the disputed FUCT. “That’s at the heart of the vagueness problem here,” she said. “The statute says ‘scandalous,’ but it really depends on which examiner you happen to draw and how that examiner is feeling on a particular day.”
The justices will hand down their decision by July. Until then, we can take comfort in the delicious irony of an “outsider” fashion brand wanting official government approval badly enough to take their case to the highest court in the land.
“It can be hard to maintain authenticity in the face of sudden mainstream popularity, particularly if the nature of your authentic self is to be transgressive, to be a rebel, to be an outsider,” Scafidi said. “On the other hand, this case shows that there is nothing to say that being an outsider and being a commercial success are mutually exclusive.”
