Oral argument at the U.S. Supreme Court yesterday in Iancu v. Brunetti centered on the word FUCT. Well, sort of. As one of the lawyers fussily put it, it centered on “the equivalent of the past participle form of the paradigmatic profane word in our culture.” Right. FUCT.
The case is all about offensive, shocking and profane language. Yet the Justices and the parties’ attorneys pussyfooted around for an hour, steering the argument clear of anything even remotely R-rated. The attitude that there are several words so offensive they cannot be spoken aloud dominated the hearing. It may well dominate the Court’s eventual opinion.
Here’s the backdrop for all of that tiptoeing around those unspeakably naughty words.
On one side, the United States Patent and Trademark Office (USPTO) is fighting hard to maintain its ability to reject “scandalous” trademarks from being registered in the government’s database. On the other side, Erik Brunetti has been using FUCT as a trademark for over twenty-five years on clothes and accessories and wants it on the federal trademark register. (You get trademark rights as soon as you use a mark in commerce — registration gets you extra advantages, like nationwide notice of your rights and the ability to ask Customs to stop counterfeits at the border.) Brunetti is armed with the First Amendment and Matal v. Tam, a Supreme Court opinion from June 2017 holding that the USPTO violated the right to free speech when it refused to register THE SLANTS as a trademark for a rock band on the ground that the term was disparaging to Asians.
Before Tam, the federal trademark law required the USPTO to refuse registration for “disparaging” and “scandalous” marks. That case struck down the disparagement bar and now the Court is faced with a challenge to the scandalousness provision of the statute, which has long barred registration of marks that offend and shock. As described more fully in prior posts, the USPTO has for decades refused trademark registration to terms like FUCK, SHIT, PUSSY, ASSJACKED, THE NUTSACK, I BANGED BETTY, CUMFIESTA and 1-800-JACK-OFF. Brunetti wants the Court to strike down the bar on registering scandalous marks as unconstitutional under the First Amendment. The USPTO wants to hang on to that bar so it doesn’t need to let bad words onto the government’s database.
The USPTO is currently suspending applications with marks it finds scandalous pending the outcome of Brunetti. Right now, for example, around 125 applications include the term FUCK. Variations in other pending applications include FCK, FUUCK, FVCK, FUC, FUK, FUCH, F-U, FUCKIT, FUKET, FUX and a few asterisked riffs on F**K. SHIT is in the same holding pattern, with around 150 SHIT-ty applications as well as some with SH!T, SH*T, $#!T, $H.T and SCHITT. N-word marks are also being suspended as scandalous.
Brunetti’s attorney presented the Court with a written appendix to his brief, detailing the USPTO’s inconsistent rejection or registration of naughty terms. It focuses on George Carlin’s Seven Filthy Words – shit, piss, fuck, cunt, cocksucker, motherfucker and tits – and throws in bastard, asshole, dick, pussy and bitch for good measure. (Justice Gorsuch referred to this appendix during the argument, but quickly backed off: “I don’t want to — I don’t want to go through the examples. I really don’t want to do that.”)
At the oral argument, the Justices were very concerned that, if they strike down the scandalousness provision, vulgarities will pop up on busses and in newsstands and all over the marketplace – as Justice Breyer said, “where children and others see it.” Chief Justice Roberts worried that the FUCT mark was “going to be on people walking down through the mall,” presenting problems “for parents who are trying to teach their children not to use those kinds of words.” (Cool Justice Ruth Bader Ginsburg pointed out that the target audience for Brunetti’s apparel would hardly gasp in horror at the word FUCT, which, to them, is “mainstream.”)
This paternalistic worry is misplaced. People are out in public right now wearing t-shirts that bear offensive terms, including FUCT. And allowing profane marks onto the USPTO register won’t suddenly cause businesses and individuals to jump into the market and offer, say, MOTHERFUCKING AMAZING honey-glazed ham or BIG TITS lip balm.
A few of the Justices floated the idea that there could simply be a magical list of forbidden words that applicants for trademark registration could avoid and all would be well. Justice Alito said, hopefully, “let’s say we’re going forward and there’s a list of words and you just can’t use those.” Justice Kagan added that the USPTO could in the future “focus on modes of speech and, essentially, what that means . . . is it won’t allow trademarks that are profane.”
Problem solved, right? Um, no. For one thing, they would have to overcome their moral outrage and actually write out that list. A broad wink wouldn’t do it. Justice Breyer suggested, unhelpfully, “it’s not too tough, you know. I mean, most people know what words we’re talking about.” So are we talking BITCH, CRAP, SLUT and BASTARD along with COCKEATER, CUNT and FUCK? Also, as Brunetti’s attorney pointed out, marks like FUCK RACISM or FUCK CANCER express viewpoints that are clearly protected by the First Amendment. And what about FVCK or FUUCK or FUK? Would only exact matches be prohibited or could the USPTO refuse infinite variations like the many creative versions listed above?
The Justices’ squeamishness over profanity and vulgar terms may cause them to conveniently forget what they opined so recently in the SLANTS case: “Speech may not be banned on the ground that it expresses ideas that offend.” Apparently that noble sentiment comes easily when the idealistic plaintiff is heroically trying to reclaim a racial slur, as was the case with THE SLANTS. It’s unclear whether the Court will make the correct legal call under the First Amendment or if Erik Brunetti will be FU– oh, sorry, if Erik Brunetti will be the equivalent of that paradigmatic profane past participle.