The Lanham Act, the United States’ primary trademark statute, prohibits the registration of trademarks that are considered “scandalous” or “immoral.” It has done for more than a century. Yet who decides what constitutes “scandalous” or “immoral” in business communications? And some people see the law as violating free speech rights.
The U.S. Supreme Court is poised to determine whether the U.S. Patent and Trademark Office can use the Lanham Act to refuse to register the trademark of a Los Angeles artist. He has created a clothing line called “Friends U Can’t Trust,” or FUCT for short. And yes, that sounds like the dirty word.
The artist, Erik Brunetti, doesn’t see his FUCT brand as scandalous or immoral, but as thought-provoking. He argues that the line is meant to challenge “the assumptions of society, the government and accepted wisdom.” In other words, FUCT is meant to be counter-cultural.
One amusing aspect of the hearing before the Supreme Court was the reluctance by all involved to say the disputed word — or any potentially scandalous word. When referencing the famous George Carlin routine about seven words you can’t say on television, Neil Gorsuch said, “I don’t want to go through the examples. I really don’t want to do that.” The audience burst into laughter.
The government — in the form of the Patent and Trademark Office — doesn’t want to be seen as endorsing scandalous or immoral speech. The solicitor general argued that requiring it to trademark FUCT would be forcing such an endorsement.
On the other hand, the First Amendment only allows the government to suppress speech if doing so would serve a compelling government interest, the prohibition is viewpoint neutral, and the prohibition is narrowly tailored to serve the government interest without undue violation of free speech rights.
Is it fair to say that suppressing speech that is “scandalous” or “immoral” — which are relatively ambiguous terms — meets that test? How would a person be able to tell in advance whether the Patent and Trademark Office would consider a particular trademark “scandalous” or “immoral” when many people would disagree on what those terms mean? Is the prohibition viewpoint neutral if the artist intentionally adopts an anti-morality viewpoint?
If you’re all right with trademarking the word FUCT, consider what Justice Stephen Breyer referred to as “the racial slur we all know about.” Should companies be able to trademark the ‘N’ word? Would you be all right with seeing that on the side of a bus as part of a product name?