In 2011, when Erik Brunetti set out in to register Fuct, the name of his then-20 year old Los Angeles-based streetwear brand, the U.S. Patent and Trademark Office (“USPTO”) had one word for him: No. Prior to the 2017 decision from the U.S. Supreme Court in “The Slants” case, in which America’s highest court held that the Disparagement Clause in the Lanham Act was unconstitutional, federal trademark law barred registration of names, logos and other marks that were deemed “immoral” or “scandalous.” Fuct fit squarely within this territory, according to the USPTO.
Thanks to the Supreme Court, which held in June that the U.S. Court of Appeals for the Federal Circuit violated musician Simon Tam’s free speech rights by refusing to register the Slants, the name of the Asian American rock group he founded, the same federal appeals court ruled in Brunetti’s favor. Yes, late last week, the U.S. Court of Appeals for the Federal Circuit held that Fuct, while certainly still falling within the realm of “immoral” or “scandalous,” is entitled to federal trademark protection, thanks to its status as protected speech under the First Amendment.
Judge Kimberly Moore, writing for the Federal Circuit’s three-judge panel, stated, that while “fuct” is, in fact, vulgar, “the First Amendment 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. “
She further argued that “in this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.” Such broad usage by the USPTO and courts of the Disparagement Clause to deny trademark registrations, according to Moore, is an “unconstitutional restriction of free speech. These refusals chill speech anywhere from the Internet to the grocery store.”