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Saturday, April 20, 2019

FUCT or Phuced; the Justices Must Decide.

The Supreme Court's oral arguments in Iancu v Brunetti were fascinating as the justices tried to avoid saying the name of the trademark in question, F.U.C.T. A clothing company is trying to trademark that name as an appeal to a generation that doesn't have the same reaction to the word that older folks do. (I suspect the controversy will be good for them in any case.) The question before the court is whether the prohibition on federal registration of immoral or scandalous trademarks is invalid under the First Amendment.

To many the sound of that word is offensive. To simply see the word, I would argue, requires some effort on the part of the viewer to apply an offensive meaning, as in the case of "Phuct." Neither word has any intrinsic meaning and the offense, if there is any, comes from the individuals application of verbalization. What if the company decided to trademark the name Möse? Anyone seeing the word in an English-speaking country would go ho-hum whereas a German would be scandalized as it's probably the most offensive word in German, sort of like "charogne," in French. Offense is always determined by the person being offended who must chose whether to be offended or not. One can always decide not to be bothered and get on with things in which case the word will gradually lose its singular offensiveness.

The Lanham Act prohibits trademarking "immoral or scandalous" terms, a broad definition indeed and one subject to all sorts of interpretations. The issue of viewpoint discrimination was raised. For example, one might argue that the slogan "Make America Great Again" has now become thoroughly offensive to many people because of the viewpoint it represents. The government argued the U.S. Patent and Trademark Office has previously defined scandalous as encompassing trademarks that are “shocking,” “offensive,” “disgraceful” and “disreputable,” but going forward they would interpret the statute more narrowly, limiting it to terms that are shocking or offensive because of their “mode of expression,” rather than the “ideas that are expressed.” Several justices thought that for the government to ask them to uphold a statute based on a "promise" of future narrow interpretation was asking a lot.

The government's position is that it wishes to "protect" people from materials they find offensive, a paternalistic attitude if there ever was one, and as a couple justices pointed out, a trademark doesn't have to be registered, and all sorts of "offensive" trademarks could be used without the government's formal registration. Not to mention that the PTO's interpretation of what is offensive changes over time making it difficult for any business to discern what might be acceptable now or later. Ironically FUCT is not a "dirty" word, but only becomes one when an illicit meaning is assigned to it.

Möse clothes, anyone?

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