In perhaps the least surprising trademark decision of the past 12 months, and one that could have been rendered in under 5 pages (rather than the 50 it actually took), the Court of Appeals for the Federal Circuit last Friday held that the Lanham Act’s Section 2(a) bar on registration of marks which “consist of or comprises immoral…or scandalous matter” is an unconstitutional, content-based restriction on speech. In re Brunetti, Appeal No. 2015-1109 (Fed. Cir. December 15, 2017). In that case, Erik Brunetti had toiled for more than 6 years attempting to register his mark, FUCT, for clothing. Those efforts were uniformly unsuccessful despite some weakly-creative arguments that the word, “fuct,” was not actually vulgar, and even if it was, Section 2(a) did not bar registration of “vulgar” marks.
All of this was rendered moot, however, by the Supreme Court’s late-spring decision in Matal v. Tam, 137 S. Ct. 1744 (2017) which held that because trademarks are private, rather than government, speech, restrictions placed on their registration on the basis that they reflect offensive ideas do not survive strict scrutiny. As a result, Mr. Tam was permitted to register the term, THE SLANTS, for his Asian pop-band, because while the term may “disparage” certain segments of the Asian population in this country, as previously-prohibited by another part of Section 2(a), that prohibition is unconstitutional.
Which means that Mr. Brunetti has now, of course, won his right to register his FUCT trademark at the federal level, and then record his registration at Customs so as to prevent the importation of counterfeit FUCT-branded products. And so to our trademark jurisprudence has been added what will henceforth be known as “The FUCT Case.” And indeed, that word and many others, including those which comprise George Carlin’s famous “Seven Dirty Words” sketch, are available for all of this country’s budding entrepreneurs to use, register, advertise, and promote to their hearts’ content. So let’s get creative, people! Show the Trademark Office what you’ve got. Pretty much everything is fair game now. And trademark law just got a little less sophisticated, and a whole lot more offensive, than it was just a few days ago…
KMK Legal Alerts and Blog Posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. Please consult with counsel of your choice regarding any specific questions you may have.
© 2019 Keating Muething & Klekamp PLL. All Rights Reserved
- Intellectual Property
- Social Media
- Trademark Litigation
- Craft Brewing
- Medical Marijuana
- United States Patent and Trademark Office
- Trademark Trial and Appeal Board
- Registered Trademark
- Federal Trademark
- Amazon's Brand Registry
- Medical Cannabis Dispensaries
- Drug Enforcement Agency
- Uniform Trade Secrets Act
- E-Discovery Case Law
- Regulation Fair Disclosure
- Securities Law
- Securities Regulation
- "Aloha Poke": Social Media and Consumer Perception are Part of the Trademark Enforcement Equation
- Could Any Old Yahoo Nab Chief Wahoo?
- Trademark Registration Practice is Officially…umm…Well, You’ll See
- Booze is Booze, Right? Not so fast...
- Did A Neural Network Just Solve Craft Brewing's Trademark Problems?
- Enroll in Amazon’s Brand Registry 2.0… But Only if You Own a Registered Trademark
- Fiona Versus the Counterfeiters: What About Her Rights?
- Choice of Law and Trademark License Agreements: Rethinking Delaware as an Appropriate Jurisdiction
- Medical Cannabis Dispensaries Coming to Cincinnati...?
- Why Is The USPTO Treating Marijuana Differently For Patents Than For Trademarks?