SCOTUS to review FUCT trademark in First Amendment case between fashion designer and patent office

The U.S. Supreme Court on Friday agreed to review a First Amendment case involving a fashion designer fighting to register “FUCT,” the name of his clothing line, with the U.S. Patent and Trademark Office (USPTO).

Justices listed the FUCT case, Iancu v. Brunetti, among several slated for consideration in 2019, putting the future of the Los Angeles-based clothing brand in the hands of the nation’s highest court.

Erik Brunetti, the brand’s owner, tried to register the trademark “FUCT” for his clothing line in 2011, but the USPO denied his request, citing rules under the federal Lanham Act barring trademarks containing “immoral, deceptive or scandalous matter.”

“FUCT is the past tense” of a vulgar homonym and is “therefore scandalous,” the USPTO ruled at the time.

Mr. Brunetti challenged the rejection before the USPTO’s Trademark Trial and Appeal Board and lost, but the U.S. Court of Appeals for the Federal Circuit ordered that decision reversed in Dec. 2017, ruling: “registering immoral or scandalous marks is an unconstitutional restriction on free speech.”

President Trump’s administration subsequently asked the Supreme Court to consider the case, prompting Friday’s order paving the way for its review.

“The Supreme Court reviewing and hearing this case is opening the conversation for all Americans’ First Amendment and free speech, which I believe can only lead to a positive dialogue, regardless of the Supreme Courts’ decision,” Mr. Brunetti told The Washington Times

Representatives for the Department of Justice’s Office of the Solicitor did not immediately return a message seeking comment.

“If the Court upholds the Federal Circuit decision, we may see a glut of profane and sexually explicit trademark applications filed at the USPTO, which is what the government appears to be concerned about and why it wants the Federal Circuit’s decision reversed,” said J. Michael Keyes, an intellectual property attorney and a partner at international law firm Dorsey & Whitney.

The Supreme Court previously ruled in Matal v. Tam that registration of “disparaging” trademarks violated the First Amendment. Decided unanimously in June 2017, the ruling was cited six months later by the federal appeals court that found rules barring immoral and scandalous trademarks similarly violated the constitution’s free speech protections.

“There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case,” Federal Circuit Judge Kimberly A. Moore wrote for the appeals court.

Andrei Iancu, undersecretary of commerce for intellectual property at USPTO, asked the Supreme Court to consider the case in September 2018, writing: “the First Amendment does not prohibit Congress from making vulgar terms and graphic sexual images ineligible for federal trademark registration.”