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…
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