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SCOTUS Hears F*CT Argument

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administration�  s asylum policy �  an Obama judge.�   �  We do not have Obama judges or Trump judges, Bush judges or Clinton judges,�   Roberts said in a statement. �  What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.�   (Photo by Chip Somodevilla/Getty Images)
By George Khoury, Esq. on April 16, 2019

The United States Patent and Trademark Office’s SCOTUS appeal of the Federal Circuit’s decision in the FUCT clothing brand case was recently argued, and it was every bit as spectacular as you might expect (George Carlin's "dirty words" even came up).

The central issue in the case involved whether the statute prohibiting offensive terms from being trademarked was invalid on its face. The Federal Circuit Court of Appeals ruled, back in 2017, that the statute, section 2(a) is unconstitutional as an impermissible First Amendment restriction. Complicating matters, SCOTUS also recently ruled in the Matel v. Tam case which involved the trademark for a band with a racially pejorative name (which the band was seeking to reclaim), which it found to be okay.

Handling Vulgarity on the Record

Simply put, the argument in the Iancu v. Brunetti case should be studied by practitioners who must deal with sensitive language in court. Counsel for USPTO does an amazingly artful job of handling the vulgarity, as he seemed to naturally utter the following phrase instead of the four simple letters: “the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language.”

Not surprisingly, in the argument transcript, the ‘F’ word itself never appears. The phrase “F word” is found only once. Notably, Brunetti’s brand’s name was never even mentioned once, despite two similar sounding registered trademarks for the brands FVCK and FCUK were both mentioned (once each).

Consequences of Freedom

One of the more significant issues for Chief Justice Roberts involved protecting children and parents from having to see the brand name’s emblazoned on clothing at the mall, both by retailers and other shoppers. The Chief Justice actually asked about the following:

“But it is going to be on people walking down through the mall. And, you know, for parents who are trying to teach their children not to use those kinds of words, they're going to look at that and say, well, look at that, and then, you know, they're going to see the little trademark thing and say, well, it's registered trademark. Well, they won't say that … but you -- you understand my point, is that the government's registration of it will facilitate its use in commerce, not necessarily as speech, but as a commercial product, and that has consequences beyond -- regardless of where the product is sold?”

And while that paternalistic argument might seem out of place, one of the bigger points of contention is where the slippery slope ends if section 2(a) is invalidated by SCOTUS. Of particular concern is the use of visual or graphic trademarks that might be offensive.

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