The FUCT Trademark Decision at the U.S. Supreme Court
Erik Brunetti founded clothing brand, F.U.C.T., in 1990 but, prior to Monday, he had been unable to trademark his products and retail services. To grant Brunetti his trademark, the Supreme Court nullified the federal law in Section 2a of the Lanham Act that blocked trademarks for brand logos bearing “immoral, deceptive, or scandalous matter.” This would include profanity and sexual imagery, both of which the brand name had been accused of by the United States Patent and Trademark Office (USPTO) when they refused registration of the mark.
The Supreme Court Decision that got Brunetti his long-awaited trademark rights found support in both conservative and liberal justices who ruled in favor. In the Court’s opinion, Judge Elena Kagan wrote, “What is scandalous? It goes against society, current view of morality, and that is viewpoint discrimination.” The justices argued that the statute in question cannot stand because it “infringes the First Amendment” and “disfavors certain ideas.” Samuel Alito, who partially voted for the decision, emphasizes that their decision should not prevent Congress from “adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.” Alito, among a few others, worries that the results of the decision will be negative if repellant phrases are allowed to dominate public spaces. Judge Breyer believes they are “creating the risk of verbal altercations or even physical confrontations” by shutting down the statute.
Leading trademark attorney Nicholas Wells was not surprised by the decision. “This follows from the decision in the trademark case about THE SLANTS trademark, where a potentially disparaging mark was permitted to register. This case expands what the Court permitted but is similar in its view that the Lanham Act cannot block protection of words or phrases that people may wish to use to indicate the source of goods or services. While some may find certain words offensive, it does make sense to conclude that society generally is too fragmented now to feel as comfortable having a federal statute define what is permitted and what is not permitted in public communications.”
Brunetti has always been aware of this potentially vulgar perception of his brand, although it is technically pronounced one letter at a time, F-U-C-T, and not as a single word phonetically equivalent to the past tense of a vulgar word. The company’s name stands for “FRIENDS U CAN’T TRUST,” but the acronym is meant to question authority and societal assumptions. Brunetti claims the decision to call the company “FUCT” was very premeditated. “We didn’t wanna just call it FUCT to make it look crazy. We wanted it to be confusing. So you had to question the pronunciation of the name based on the way it look,” said Brunetti.
The company has been attempting to trademark the name since 2015, according to records in the USPTO database. Brunetti has 11 trademark applications in his name relating to the company and its products. “F.U.C.T. FRIENDS YOU CAN’T TRUST,” “FUCT THE POPULATION,” “FUCT UP,” and “FUCT” (stylized) represent just a few of the applications in Classes 9, 14, 18, 25, and 35 for products and services. The company uses its brand in connection with clothing items, footwear, watches, jewelry, bags, phone cases, and more.
Clearly, Brunetti has a well-established brand already, but he is excited about the new rights afforded him by the Supreme Court Decision in Iancu v. Brunetti. He will be able to shut down the many products infringing on his brand name, and the decision will enable him to eventually sell the brand. Brunetti is also excited about what the decision means for other brands hoping to challenge society’s expectations by trademarking traditionally vulgar words.
On the same line of thought, the Supreme Court Justices are cognizant of what this decision means for others’ brand names. Steve Vladeck, CNN Supreme Court analyst, observes “much of the debate…is over just how far they can go to rewrite a poorly worded statute in order to save it from constitutional challenge.” All generally agree that the statute is discriminatory towards certain ideas, but some are more cautious than others about the results of freeing these ideas.