The Supreme Court is going to get “Fuct.”
The justices agreed Friday to look at whether the U.S. Patent and Trademark Office can refuse to register the Fuct mark for a line of apparel. At issue is a 113-year-old statutory provision that prohibits registration of “immoral” or “scandalous” trademarks.
Iancu v. Brunetti will give the justices an opportunity to revisit and flesh out Matal v. Tam, in which the court just 18 months ago ruled that a related provision barring “disparaging” trademarks violates the First Amendment.
The Supreme Court’s holding in Tam was unanimous but the justices split 4-4 on the precise rationale. Since then Justices Neil Gorsuch and Brett Kavanaugh have joined the court.
Both the U.S. government and streetwear designer Erik Brunetti, who’s represented by longtime Stussy Inc. general counsel John Sommer, asked the Supreme Court to take up the case.
Brunetti has been trying to register his Fuct mark since at least 2012. The PTO rejected it based on Section 2(a) of the Lanham Act, which prohibits marks that comprise “immoral, deceptive, or scandalous matter.” The PTO concluded that Fuct is the past tense of “fuck,” a prohibited vulgarity, and that Brunetti was using it alongside “strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny.”
His appeal to the U.S. Court of Appeals for the Federal Circuit was put on hold while that court and then the Supreme Court wrestled with Tam and the disparagement provision, which is also part of Section 2(a). The high court ruled that the U.S. Patent and Trademark Office must register the Asian dance band name The Slants. “Speech may not be banned on the ground that it expresses ideas that offend,” Justice Samuel Alito wrote for a four-member plurality.
Following Tam, the Federal Circuit ruled that the “scandalous” provision is an unconstitutional content-based restriction on speech. “The government’s interest in suppressing speech because it is off-putting is unavailing,” Judge Kimberly Moore wrote. Judge Timothy Dyk concurred separately, suggesting the provision could be preserved if it were limited to obscene speech.
In its petition to the Supreme Court, the government argued that the law “simply reflects Congress’s judgment that the federal government should not affirmatively promote the use of graphic sexual images and vulgar terms by granting them the benefits of registration.”
Brunetti argued that while the Federal Circuit reached the correct outcome, the court should grant cert to clarify that the government discriminate between vulgarities. “In actual practice, the government allows registration of some profanity, for example, ‘bitch,’ and ‘damn,’” Sommer wrote. The PTO even allows some variations on fuck, such as WTF and FWORD, he added.
The case will present the additional challenge of how to treat the word fuck during oral arguments. At the Federal Circuit, Dyk spoke the word while Moore spelled it out and Judge Kara Stoll used the letter F.
Profanity has become increasingly prolific in court opinions. Between 2006 and 2016, the word “fuck” was quoted more than 400 times in federal appeals court opinions, according to a law.com analysis. That’s nearly as many as the preceding four decades combined.