In 2020, politics seemed to permeate everything, from get-out-the-vote efforts by companies like Uber and Lyft, to prompts on social media urging users to register and vote. There used to be a sense that politics was bad for business, but it seems we’ve encountered an era where it’s nearly impossible for brands to avoid getting political in some way.
In April of this year, the Supreme Court heard a case that was quite literally FUCT.
Pronounced as an acronym spelled out letter by letter, FUCT is a popular streetwear clothing label founded by Los Angeles artist and entrepreneur Erik Brunetti. Established in 1990, the brand filed a trademark application in 2011 and is now defending its brand name and rights to a federal trademark in the nation’s highest court on the grounds of free speech.
The United States Patent and Trademark Office denied Brunetti’s application on the grounds of the apparel company displaying “strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny.”
As the case went back and forth in the courts, lawyers, and well as justices up and down the bench did their best to state their case while avoiding the use of the brand’s “scandalous” name. With lengthy substitutes from the likes of Deputy Solicitor General Malcolm Stewart, whose substitution could win an award for alliteration, “the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language,” the hearing inched along toward determining whether this was not only the case of trademark law, but rather a case against free speech.
Oh Yeah … Trademark Law
Per the 1946 federal trademark law, the government is instructed to reject requests registering words or symbols that can be construed as “immoral” or “scandalous.” But as Brunetti, and many others, argue, this is a direct violation of our 1st Amendment rights. While Stewart told the court that the clothing brand beard the word “FUCT,” he argued that a trademark of the word would be a “government benefit,” thus defying the law.
John R. Sommer, attorney to Brunetti, declared the “scandalous” provision outdated and far too broad, while noting years of inconsistent rulings coming out of the trademark office. Justice Ginsberg argued that the demographics of FUCT lean toward younger, millennial and Gen-Z consumers, most in their 20’s, and the word at the center of the debate is not seen as shocking or scandalous but as fairly mainstream by this segment.
Justices Gorsuch and Sotamayor, however, agreed that this issue falls heavier on the question of trademark law and the benefit of government than that of free speech.
On the business front, Brunetti stated that third-party websites such as Amazon and eBay are knocking off his clothing as due to his lack of trademark benefits, and he’s losing money off the counterfeits.
A Scandalous History
Amid all the confusion, tip-toeing, and split arguments, there is one ray of hope: we’ve seen this all before.
In 2017, the Portland, Oregon-based rock band, The Slants, headed to the Supreme Court over the trademark of their name. While the members of the band are all of Asian descent, the trademark office denied their request, finding the name to be racially offensive. The band argued that they were taking back the term, draining the derogatory impact of it in the process. In the end, the Supreme Court ruled in favor of The Slants, allowing them to trademark their name and finding that trademarks are private, not government, speech.
As societal and mainstream norms shift, whether by a race or culture taking back an offensive term, or simply creating a new word reminiscent of on deemed “scandalous,” is it the government’s job to move forward with the times? In the case of FUCT, there was a discrepancy between what meets the requirement for trademark law and what artists are creating here and now, and where, in the midst of it all, free speech is able to live.
For many small and start-up brands, trademarking is an arduous and costly process. According to Legal Zoom, obtaining a trademark with your brand’s name and logo requires you to first market yourself online and offer your products for commercial trade across a wide geographical range. By doing this, a brand creates common law trademark rights before they register for a federal trademark, protecting their intellectual property.
To begin the process of registering for a trademark, brands must start on the state level, completing an application in each state they plan to sell their products in and where their trademark would be heavily used. Registering on the federal level requires the completion of separate federal trademark applications for both the name and logo with the United States Patent and Trademark Office. The brand must then sign a sworn affidavit of ownership rights, as well as pay a hefty fee.
They Can Take Our Name, But They’ll Never Take Our Freedom (Of Speech)
One thing is very clear – this case is extremely muddled. The trademark office was inconsistent in the past, approving trademarks to “Grammar Nazi” and “Cumbrella” while rejecting “Surf Nazi” and “A-Hole Patrol.” There is no apparent rhyme or reason behind these decisions when you stack them up against one another. Does “scandalous” even exist in today’s culture?
Regardless of the outcome of the FUCT case, it’s apparent that times are changing. The question to ask is whether or not it is the job of the government – and the job of trademark law – to change along with it. It seems highly unlikely that brands and creatives will walk back on their work just to stay within the box, accepting the outdated standards and regulations of a “polite” society.