WASHINGTON — When Eric Brunetti and Natas Kaupas, a phenomenal Southern California skateboarder, launched a line of streetwear in 1990, they wanted a brand name that would match the subversive, anti-establishment theme of their clothing.
So they coined a single four-letter word to appear on their T-shirts, hoodies, jackets and shorts. But when Brunetti sought legal protection for the company's name, the federal government said it could not issue a trademark for the word he chose: Fuct.
The U.S. Supreme Court will soon decide whether that refusal violated Brunetti's freedom of speech.
A century-old provision of federal law requires the Patent and Trademark Office to refuse registration of proposed trademarks that are "scandalous" or "immoral." Government attorneys concluded that Brunetti's brand name was phonetically equivalent to the past tense form of the universally known f-word (also the past participle, they could have noted).
It's a case similar to what faced Portland band "The Slants" faced in a trademark dispute over their name, which they consider a "re-appropriation" of their heritage and a source of pride.
The Supreme Court ruled in their favor in 2017 that federal trademarks can be registered in most cases even if they are considered derogatory.
While defending the First Amendment's freedom of speech protection in The Slants case, the justices did not remove all discretion from the U.S. Patent and Trademark Office. But they raised the bar for trademark denials so that names deemed to be offensive but not hateful can survive.
The trademark office considers a name to be scandalous if it is "shocking to the sense of truth, decency, or propriety" or "disgraceful, offensive, disreputable." Federal courts have said the prohibition also applies to terms that are "vulgar, lacking in taste, indelicate, and morally crude."
Scandalous, however, is just the sort of thing Brunetti wanted his name to be, so he appealed. And he won. A federal appeals court agreed that the brand name is scandalous, but it ruled that the provision of law barring trademarks for such terms violates freedom of speech.
The appeals court said the government cannot suppress expression merely because it will be off-putting to others. A key factor in its ruling was a 2017 decision by the Supreme Court that struck down another provision of federal law barring trademarks that disparage people or "bring them into contempt or disrepute."
The Trump administration is urging the justices to uphold the decision of the trademark office and the provision banning protection for scandalous terms. Brunetti's speech isn't being restricted, the government said, because he can call his clothing line whatever he wants and has used the term since 1991. He just can't get the benefit of a federal trademark.
Solicitor General Noel Francisco said in his court filing that Congress does not want the federal government to "affirmatively promote the use of graphic sexual images and vulgar terms by granting them the benefits of registration."
The administration also said the trademark law does not violate the First Amendment because it is not a restriction on offensive ideas. Instead it its aimed at an offensive means of expressing whatever thought the company wishes to convey, government lawyers say.
In response, Brunetti argued that if the justices uphold the trademark restriction, "state and local governments could effectively block unpopular organizations advancing controversial causes" thought to be scandalous to at least a portion of the public.
Besides, he said, the trademark office doesn't refuse trademarks for all profanity or sexual content but instead makes decisions grounded on the level of perceived offensiveness, which he says is a restriction based on ideas.
He notes, for example, that the government has issued a trademark for the brand name "FCUK," which the company insists stands for French Connection UK, and for a clothing line called "Fword" and an online dating site known as "WTF is up with my love life?!"
A group of intellectual property lawyers agrees with him, noting that the name "Madonna" was denied as a trademark for a brand of wine, but "Weekend Sex" was allowed as a trademark for a magazine.
The justices will hear the case on April 15 and issue a decision by the end of June.