Erik Brunetti, founder of the 'FUCT' clothing line, prevails against the contention that the government shouldn't have to subsidize distasteful marks.
one, but the government was nevertheless hopeful that its prurient concerns would survive another day.
Filling in the gaps in its follow-up opinion today, the Supreme Court agrees with Brunetti that no principled reason exists for distinguishing the disparagement ban from the scandalous ban. The government's claim that it's a content neutral action to establish criteria on profanity, excretory and sexual matter can't survive the sniff test, not when such regulation amounts to a perspective on what's offensive and not when trademark examiners have in the past applied their standards inconsistently.
Continuing, she adds, "The 'immoral or scandalous' bar stretches far beyond the Government’s proposed construction. The statute as written does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose 'mode of expression,' independent of viewpoint, is particularly offensive. It covers the universe of immoral or scandalous—or offensive or disreputable—material. Whether or not lewd or profane.
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