FUCT wins in court as SCOTUS considers waiving delicate moral standards when granting trademarks

When is a brand too scandalous? trademark?

This is an issue for the Supreme Court will determine soon in a case that tests the constitutional limits of free speech.

I attended the April 15 hearing where attorneys represented streetwear clothing label FUCT argued the corporate had a right to register its brand as a trademark, which helps protect it from imitators. The United States Patent and Trademark Office had rejected it on the grounds that FUCT is “immoral” and “scandalous”.

As a Trademark attorney and scholarI consider it’s time for the US to stop imposing an unworkable moral standard in trademark law – because it does in lots of other areas of law. Here's why.

An outlaw ethos

It's perhaps fitting that this case comes from a streetwear label known for pushing boundaries.

While it's common nowadays for clothing brands to adopt a provocative ethos and image, FUCT founder Erik Brunetti was one Pioneer of surprising streetwear fashion When He founded the corporate in 1990. The name was intended to embody the corporate's outlaw image – a company logo with anti-authoritarian pronunciation and a subversive message.

A preferred style was prints of the brand name within the font of the Ford logo found on T-shirts And Hats. The brand quickly became a cultural icon, with gear worn by skateboarders, punk rockers and even others Members of the band Nirvana.

As the label's popularity grew, counterfeit FUCT goods emerged. In order to guard its brand more effectively worldwide, Brunetti applied for registration it with the US Patent and Trademark Office in 2011.

Trademark Registration brings significant benefits, including nationwide protection against confusingly similar products, increased financial damages in litigation, and priority for foreign filings. It also allows U.S. customs officials to stop counterfeit goods from entering the border.

In rejecting Brunetti's application, the examiners argued that he had violated a provision in trademark law that’s greater than a century old.

“insult to conscience”

The ban on registering immoral and scandalous trademarks has been in place since Congress passed the Trademark Act of 1905. It states that any mark that “consists of or contains immoral or scandalous content” shall be rejected.

Scandalous today is defined as “shocking to the sense of decency, offensive to conscience or moral feelings, or calling for condemnation.”

Me and other scientists I've been questioning the wisdom of this for a very long time to have the Trademark Office because the arbiter of a collective and ever-evolving moral standard. That's due to brands fulfill a beneficial function available in the market by identifying the source of a great or service, helping consumers trust where something they’re buying comes from and stopping deception.

What matters is the standard of the source – not the moral quality.

And since the ban affects registration but not usage, I figured this out it’s ineffective to maintain offensive brands out of the market. Furthermore, decisions based on this provision are completely inconsistent.

If FCUK is OK, why not FUCT?

While the US has moved away From regulating morality in other areas akin to broadcasting – and in other types of mental property akin to copyrights and patents – the federal government continues to achieve this in terms of grants beneficial legal rights through trademark registration.

The most important evidence examiners use to make a decision whether to reject a grade on these grounds is the dictionary. If a dictionary states that a term is “vulgar,” that’s sufficient evidence to reject a trademark.

Brand examiners evaluate the meaning of a brand within the context of the present mind-set. For example in 1938 Trademark office rejected a request to guard Madonna as a wine trademark on the grounds that the word is religious in nature. Half a century later, the office apparently not had an issue granting such trademarks it approved one for Madonna rosé wine.

Because perceptions of what’s and isn't scandalous are continually changing, it's difficult for the trademark office to maintain up. And brands which might be considered scandalous or immoral to at least one reviewer could also be acceptable to a different reviewer.

This results in trademark office records are stuffed with inconsistencies. In recent years, examiner have approved trademarks Words like “whore,” “slut,” “penis,” and “stoner” are included, while others using the identical terms are rejected.

And the office has even approved clothing brands remarkably just like FUCT, including FCUK, the F Word and Fvck Street Wear.

In the case of FUCT, the rejection was based on the concept that the homonym could be perceived as equivalent For the vulgar word it feels like this.

Terrible news

Two years ago, the Supreme Court cited the First Amendment in precipitation a ban on trademark registration for trademarks that denigrate individuals or groups. I consider the judges within the FUCT case should do the identical.

Some justices expressed concern during oral arguments that allowing offensive terms to be trademarked may very well be perceived as a form of presidency endorsement of that language.

I disagree, but more importantly, trademark law mustn’t police morality. It's a terrible thing to do.

And for the reason that court has now made it permissible to register racist and sexist trademarks, drawing the road between “scandalous” and “immoral” marks would send a terrible message to disadvantaged groups who’re typically victims of such insults.

Otherwise we could well be FUCT.