Founding Partner
On April 15, 2019, the Supreme Court of the United States heard arguments for Iancu v. Brunetti, a case pertaining to trademarks and, in particular, to a clothing line having the distinctive name “FUCT,” a name which has prevented the mark’s creator, Erik Brunetti, from obtaining a federal trademark registration number for the mark.
15 U.S. Code § 1052 recited, inter alia: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501(9) of title 19) enters into force with respect to the United States.” 15 U.S. Code § 1052 has prevented the registration of many marks, including “FUCT.” The decision of the SCOTUS may, depending on the ruling, enable many, if not all, of these marks to eventually obtain federal trademark registration numbers.
“FUCT”, founded in 1990 by Erik Brunetti, is a clothing brand that has been trying, unsuccessfully, to get the brand name trademarked for years, to no avail. This may all change following Monday’s hearing, which may result in the SCOTUS deciding whether the U.S. Patent and Trademark Office, by refusing to grant a federal trademark to “FUCT”, acted unconstitutionally.
Brunetti is quoted as saying: “Go to eBay, and you’ll see a lot of counterfeits, or go to Amazon, and you’ll see lots of counterfeits.” Brunetti is hoping that the Court will rule in his favor, enabling him to receive the trademark and prosecute those who are using the “FUCT” name.
Recent caselaw suggests that the Court may rule in Brunetti’s favor. For example, the Court ruled in favor of the band “The Slants” in 2017. In the ruling, the Court stated: “There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.” 582 U.S. ___, (2017).
How the Court will eventually rule on the “FUCT” case is up for speculation, but a decision should be reached later this year.