WASHINGTON (CBS NEWS) — The Supreme Court ruled that the brand “FUCT” should be allowed a federal trademark in a ruling announced Monday, finding that a federal ban on the registration of “immoral” or “scandalous” trademarks violates the First Amendment.
Designer Erik Brunetti wanted to register the trademark for his clothing brand, but the Patent and Trademark Office had refused to register the brand’s name, citing a provision of the Lanham Act that prohibits registration of trademarks that “consist of or comprise immoral or scandalous matter.”
Brunetti, argued that this part of the trademark law was unconstitutional, and the high court sided with the Los Angeles-based clothier. He founded the streetwear brand in 1990.
In oral arguments in April the justices sidestepped saying the tongue-in-cheek name aloud. Chief Justice John Roberts described it as the “vulgar word at the heart of the case.” Justice Samuel Alito called it “the word your client wants to use.” And Justice Stephen Breyer called it “the word at issue.”
In the opinion released on Monday, Justice Elena Kagan went so far as to write that the brand “is pronounced as four letters, once after the other: F-U-C-T.”
She added, “But you might read it differently and, if so, you would hardly be alone.” She called referred to the brand name as “the equivalent of [the] past participle form of a well-known word of profanity.”
Alito, who joined the majority and wrote a short concurrence, seemed to envision a narrower prohibition under which the “particular mark in question” could still be denied. “Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.”
Alito added, “Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends.”
Emerson Sykes, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, told CBS News that Monday’s ruling was a “victory for the First Amendment.” The ACLU had filed an amicus brief in the FUCT case arguing that the prohibition against registering trademarks that are deemed too “immoral or scandalous,” is based on a viewpoint, and under the First Amendment, the government may not regulate private expression based on viewpoint.
“Government bureaucrats should not be deciding what speech is or is not deserving of trademark protection based on what they consider to be too ‘scandalous’ and ‘immoral.’ That is, at its heart, government suppression of speech based on the viewpoint expressed. It is also, as the Supreme Court today reaffirmed, unconstitutional,” Sykes added.
A landing page for the clothing brand as of Monday morning read: “FUCT is free speech. Free speech is FUCT.”
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