This past week, the Supreme Court heard oral arguments in Iancu v. Brunetti, which challenges a refusal by the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office (PTO) to issue a trademark for a clothing brand known as “FUCT”. The mark, which is clearly and intentionally suggestive of something more profane—not to be confused with profound—stands for Friends U Can’t Trust. The PTO denied the brand owner’s trademark application based on Section 2(a) of the federal Lanham Act, which denies trademark protection for a mark that “Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The PTO rejected the mark as “scandalous” and “immoral.”
Brunetti piggybacks on a similar 2017 Supreme Court case, Matal v. Tam, in which the Court struck down the “disparage” basis for denying trademark protection under Section 2(a) of the Lanham Act. That case stemmed from the PTO’s denial of an application to a music group called The Slants, which the PTO saw as a derogatory reference to Asians. The band asserted that the name was meant as a form of flattery, but regardless of the motivation, the Supreme Court held that the Lanham Act provision unconstitutionally impinged on free speech. That decision also led to a federal court reversing the PTO’s decision to invalidate the Redskins football team trademark on grounds that it too was disparaging.
While a slightly different context, our law firm has experience representing clients denied certain government benefits because of speech that others found offensive. We represented a proprietor who sought to open a sports bar in New Brunswick, New Jersey complete with a mascot that was to be called Buck Foston’s—if you reverse the first letters of both words, you get something that might sound familiar to Yankee fans. The mayor of New Brunswick—a Red Sox fan, funny enough—told our client the name was no laughing matter, however, and strongly suggested he change it. When our client refused, the process for opening the restaurant and bar became seemed to suddenly become more difficult, and he was denied a liquor license that ultimately torpedoed the business.
The case eventually went to a federal jury trial. The New Brunswick mayor and city council conceded that our client’s preferred name was not obscene and hence constituted protected First Amendment speech. In the end, the jury agreed with our theory that while government officials asserted health and safety reasons for denying our client his liquor license, in fact, these other reasons were pretexts for suppressing protected speech.
While the First Amendment is the bedrock of American liberty, its contours are highly complex and fact specific—perhaps too much so for a right that is so fundamental. Obscenity, for instance, is not protected, but what that actually means is not simple. Other speech, such as campaign speech, is now highly regulated, much to the dismay of First Amendment advocates who believe these laws and regulations are unconstitutional. Defamation provides another instance in which First Amendment rights are not absolute.
This most recent Supreme Court case that may further chip away at 2(a) of the Lanham Act—which the Federal Circuit Court held unconstitutional down prior to it reaching the High Court—also brings to light some of the maddening subjectivity of the PTO standards. As trademark practitioners know, the trademark filing process is a fluid one, with trademark examiners often rejecting claims at first until lawyers can provide a more compelling argument for why a mark should be granted, usually because the mark is confusingly similar to an already granted mark or because it is generic or descriptive.
For example, the marks “FCUK,” “THE F WORD,” and “F’D” were granted trademarks, but “F U,” “EFFU,” and “FVCKED” were denied. With a more conservative Supreme Court inclined to broaden free speech protections, not to mention property rights, and weary of modern-day government agency deference, don’t be surprised to see another decision reining in administrative discretion and broadening the First Amendment. If that happens, First Amendment guardians may even yell, “FUCT YEAH!”
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