You’re in luck if you sell FUCK ME formalwear, own the NO SHIT diner, or produce HEY ASSHOLE pepper spray. You’ll soon be able to head over to the website of the United States Patent and Trademark Office (USPTO) and register those trademarks. Because the U.S. Supreme Court has just ruled in the Brunetti case that the statutory bars on registering “scandalous” and “immoral” trademarks are unconstitutional.
But you better move quickly . . . A passel of the Justices is not pleased with this outcome. (The moral panic during the oral argument was sort of a red flag.)
Here’s some quick backstory: Two years ago, the Court said that the ban on registering “disparaging” trademarks violated the First Amendment. You could praise someone in a trademark but not bad-mouth them, so the bar was unconstitutional viewpoint discrimination. That opinion meant that a young, idealistic musician named Simon Tam could go ahead and register THE SLANTS for his band name despite it being a slur against Asian-Americans. He was notably trying to reclaim the term from the haters so it could be a point of pride rather than animus.
The trademark before the Court now, though, is not part of such a feel-good story. At issue is the term FUCT for apparel, including clothes for infants.
And lots of the Justices are not liking that at all. Justice Alito declared huffily that “the term suggested by [FUCT] is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture.” Um, thanks, dad.
To start at the top, the majority opinion is quite clear. It’s viewpoint discrimination to refuse to register marks that “defy . . . society’s sense of decency or propriety” while letting other marks onto the register that are positive and sanitized. Thus, the First Amendment requires this registration ban to be struck down.
So far, so good.
But the federal government dangled an unusual promise before the Court: The USPTO would limit its interpretation of the term “scandalous” to very, very bad words if the Supreme Court would just please let the statute stand. A novel idea, to be sure.
And the concurring and dissenting opinions from four members of the Court were all over this suggestion. They urged the USPTO to reject “highly vulgar or obscene words” (Breyer) and certainly to prohibit “the most vulgar, profane, or obscene words and images imaginable” (Sotomayor) from getting onto the register. Even the majority left room for such a restriction, concluding that “the ‘immoral or scandalous’ bar is substantially overbroad” but staying silent about whether the Court would welcome a more limited prohibition.
What would this new and improved statute look like? Justice Alito is hoping Congress will come up with language that “precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.” Chief Justice Roberts wishes the current statute could be construed narrowly, “to cover only marks that offend because of their mode of expression,” meaning “marks that are obscene, vulgar, or profane.” And Justice Sotomayor wants to bar “marks that are offensive because of the mode of expression, apart from any particular message or idea.”
What the actual fuck. Vulgar terms absolutely express ideas and one’s “mode of expression” indubitably conveys a message. Like the use of “indubitably” right there suggests I’m trying to look smart. Mode and message are often (maybe always?) intertwined.
The implementation of this illogical mode-of-expression restriction would also be a nightmare. Though explicitly not providing a list, Sotomayor suggests that she has one in mind, recommending that the USPTO restrict “the small group of lewd words or ‘swear’ words that cause a visceral reaction, that are not commonly used around children, and that are prohibited in comparable settings.”
But USPTO employees would still have to draw impossible lines. What about viewpoint-rich phrases like FUCK RACISM or DEMOCRATS ARE SHITTY or REPUBLICANS ARE ASSHOLES? Would it be viewpoint discrimination to ban FUCK while allowing DRAT or OH DEAR? And where do misspellings come in, like GRANDPA SCHITTHED’S INKY STINKY PALE ALE? Would the mark at issue here, FUCT, pass the test of “vulgar” or “highly vulgar”?
Look, I get it. The Supreme Court is not a fan of profanity. Vulgarities, in Breyer’s opinion, “threaten to distract consumers and disrupt commerce, . . . perhaps on occasion creating the risk of verbal altercations or even physical confrontations.” But keeping FUCT off of the trademark register won’t even begin to solve that problem, no matter how much the Justices wish it would.