The Supreme Court has decided to strike down a law that forbade officials from registering a trademark to a company if said trademark included profane language in a victory for California-bases fashion brand FUCT.
The Court’s decision was based on the finding that the law—which was established in 1905—was considered a violation of the constitution’s first amendment—specifically the freedom of speech.
The initiative was led by Eric Brunetti—the owner of the brand FUCT—who was seeking to trademark the name.
The decision passed with a 6-3 majority. Justice Elena Kagan felt that the law “disfavors certain ideas,” and is, therefore, a violation of the First Amendment.
From 2005 to 2015, there were approximately 150 trademark applications rejected per year by the United States Patent and Trademark Office. That amounts to 1,500 over the course of 10 years.
The Supreme Court’s decision means all the companies and owners who had been rejected because of this reasoning in the past can resubmit their trademark applications.
Fears of Influx of Profanity
One of the fears, particularly among the Trump administration, was that removing the law would lead to an increase in trademarks with profane language and sexually graphic images.
Jacqueline Lesser echoed these sentiments, saying: “I do believe that this will open the door to indiscriminate applications for terms and words that many or most us find to be really awful.”
However, Barton Beebe, a law professor at NYU who co-authored the Supreme Court brief, doesn’t believe this is the case.
According to Beebe, the majority of the cases that were rejected due to this clause were attempting to put words on clothing.
The director of the Center For Constitutional Studies at the libertarian Cato Institute, Ilya Shapiro, agreed with Beebe, saying: “You can’t get a trademark for something that’s already in common use.”
Justice Stephen Breyer felt that striking the law down had the potential to become a slippery slope, and could lead to animosity between different groups of people, saying: “These attention-grabbing words, though financially valuable to some businesses … may lead to the creation of public spaces that many will find repellent, perhaps on occasion creating the risk of verbal altercations or even physical confrontations.”
Some felt this decision was inevitable; particularly due to the result of a case that occurred in 2017 in which an Asian-American band’s name “The Slants” was rejected for trademark approval for being deemed offensive to Asian people.
After having their band name rejected from trademark consideration, The Slants elected to sue the government.
Furthermore, the law didn’t prohibit the band from continuing to use the name—meaning they were still free to use it, they just couldn’t receive any of the benefits that come with registering a trademark, which meant it was more difficult for them to punish people peddling counterfeit merchandise.
However, others felt Brunetti’s case was a longshot, particularly due to the fact the majority of the justices involved would do their best to avoid saying the FUCT brand name while in court.