You may remember the Supreme Court case from last summer in which the high court unanimously agreed that the Federal Government could not prohibit an all-Asian-American band from trademarking its band name, “The Slants.” The Court struck down as unconstitutional the law that prohibits “disparaging” trademarks. We noted earlier that the same federal law also prohibits “scandalous” and “immoral” trademarks and that those bans are probably also unconstitutional.
Turns out, we were right. Today, the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., held that the government’s prohibition of “scandalous” and “immoral” trademarks violates the First Amendment.
Erik Brunetti has owned the clothing brand “Fuct” since 1990. When he applied for a federal trademark on the word “fuct,” the Trademark Office denied his application because the word “fuct” is (apparently) the past tense of the word “fuck,” which is vulgar and therefore scandalous. Brunetti appealed the decision, arguing that the office’s refusal to grant him that trademark violated the First Amendment. He won. The Court found that the government engaged in unconstitutional content-based discrimination of speech. Although the Court “questioned” whether the government also engaged in viewpoint-based discrimination, it did not decide that question.
Case: In re Brunetti, No. 2015-1109 (Fed. Cir. Dec. 15, 2017) (opinion here)
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