The verdict is in: Even four-letter words are protected under the First Amendment.
That was the ruling of the nation’s high court on Monday in the Supreme Court case Iancu v. Brunetti. The decision upheld a lower court’s decision and ended a trademark dispute that starting nearly three decades ago.
Erik Brunetti, founder of streetwear brand FUCT, the company seeking trademark protection, said he wasn’t surprised by the decision.
“They couldn’t rule any other way,” Brunetti told WWD.
He’s referring to the case that began in 1990, when he started FUCT — which stands for “friends you can’t trust” — in Los Angeles. Brunetti, a skateboarder and graphic designer, immediately applied for trademark protection, but was denied. The United States Patent and Trademark Office said vulgar-sounding labels were not eligible for trademark protection.
In fact, throughout the course of the long, drawn out debate, few dared utter the apparel company’s name out loud. (In the 44-page Supreme Court opinion, the brand’s name was written just four times.)
Justice Elena Kagan pointed out in the court’s decision, though, that FUCT “is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone.”
Even so, when Brunetti first appealed the case in the early Nineties the USPTO’s Trademark Trial and Appeal Board affirmed the trademark office’s decision, finding that Brunetti’s FUCT brand displayed “strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny.”
That is, under the Lanham Act — a provision of the national system of trademark registrations, which was established by Congress in 1946 as a means of protecting owners of federally registered trademarks — the trademark office has the right to deny applications for trademarks that include “immoral” or “scandalous matter.”
Now, the Supreme Court has ruled that the Lanham Act violates the First Amendment.
“At a time when free speech is under attack, it is especially important for this court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination,” Justice Samuel Alito wrote. “Law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends.”
He added that the decision “does 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.”
At the center of the case was whether it was okay for government to censor language. What one finds offensive, another may not, after all. The Lanham Act left the door open for a number of discrepancies.
While trademark protection is automatic once a product is put out into the public sphere, legally registering comes with added benefits. One of them is that it’s easier to sue copycats for trademark infringement, something that was difficult for Brunetti to do until now.
On a broader scale, the Supreme Court’s decision sets a precedence for other brands that wish to register names that might be considered offensive.
“The U.S. Supreme Court has taken the federal government out of the business of deciding questions of morality,” John Sommer, the attorney representing Brunetti, said in a statement. “The decision today was joined by both liberal and conservative justices, because they recognize the broader principles at stake: the freedom to express one’s viewpoint even if considered immoral by some.”
Even so, Brunetti said he wasn’t on a crusade.
“I didn’t do this for other brands; I did this for my brand,” Brunetti said. “If the other brands wanted to pay for my legal bills then I would agree with that. But my brand needed a trademark. It’s been almost 30 years. I’m just happy I got the trademark.”
And that means he’s getting back to work. In April, when Brunetti spoke with WWD, he likened his experience with the Trademark Office as similar to dealing with the DMV — something that felt like it took forever.
“I finally got up to the DMV window,” Brunetti said. “When you wait and you finally get to the window. I didn’t get sent back; I filled everything out properly. It only took 29 years.”