A clothing brand with a tasteless name gets its day in court
IN 1990, Erik Brunetti launched FUCT, an edgy casual-clothing line aimed at twenty-somethings. In 2011, to ward off counterfeiters selling shorts and hats emblazoned with the same four capital letters, Mr Brunetti applied for a trademark from the United States Patent and Trademark Office . His application was initially approved, but an official then deemed the mark unacceptable because “FUCT is the phonetic equivalent of the word ‘fucked’, the past-tense form of the verb ‘fuck’”.
Mr Brunetti’s fight to protect his brand with a trademark reached America’s highest court on April 15th. In grappling with the legal question—does a law permitting the PTO to deny protection to marks that are “immoral, deceptive or scandalous” violate the First Amendment?—the justices and lawyerspronouncing the word at issue.
Several justices seemed uncomfortable with this accommodation. Justice Neil Gorsuch noted “shocking numbers” of trademarks that, it seems, the PTO arbitrarily refused to honour that “look remarkably similar” to marks it granted. When Mr. Stewart began his reply, explaining why a mark spelled P-H-U-C may get the PTO’s blessing, Justice Gorsuch interrupted. “I don't want to go through the examples", he said. "I really don't want to do that.” His reponse was understandable.
Yet several justices were just as concerned about the implications of a potential win for Mr Brunetti. Justice Stephen Breyer suggested that because a few vulgar and racist words have a “different physiological effect on the brain”, requiring the PTO to trademark them all might inflict harm.
Chief Justice John Roberts and Justice Samuel Alito pressed the point. Even if FUCT doesn’t suddenly hang on racks at WalMart, the chief noted, it is “going to be on people walking down through the mall”. For parents who hope to “teach their children not to use those kinds of words”, the government’s imprimatur via the trademark is counterproductive. The registration of the mark “will facilitate its use in commerce” even if it is only sold, as FUCT is, on the internet.
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