- The Washington Times - Sunday, January 13, 2019

A Supreme Court case to be heard this spring could have the justices dropping the F-bomb.

The justices last week agreed to hear a challenge to trademark law involving a clothing brand named “FUCT” — leaving court watchers wondering how the justices will handle oral argument.

The U.S. Patent and Trademark Office says the name appeared to be intended as a homonym for a vulgarity, and thus violates a federal law prohibiting “scandalous” trademarks. On that basis, PTO refused to register the trademark.

Designer Erik Brunetti sued and won the first round in court, but in an unusual move both he and the PTO asked the justices to take the case and settle things once and for all.

The high court agreed, setting up what’s likely to be a very entertaining session later this term.

“The very fact that it will be hard for the justices to even say the word is going to influence them,” said Curt Levey, president of the Committee for Justice. “The shock value probably will play some role.”

Just last term the justices broke new ground on trademark law, invalidating another part of trademark law that outlawed disparaging trademarks.

That case, Matel v. Tam, involved a band called “The Slants,” founded by an Asian-American who said he was trying to reclaim and defang a word that had been considered a slur.

The justices, in an 8-0 ruling, said trademarks are private speech, not government speech, so blocking trademarks infringed on Americans’ free speech rights. That same case also ended efforts to prevent the Washington Redskins football team from keeping its trademarks.

Some legal analysts had figured the Tam ruling would be enough to settle other cases like the FUCT trademark, which saw the PTO use a different but closely related clause in the law to try to ban it.

“Most people thought once the court decided Tam, the scandalous bar would also go down because it was similarly viewpoint based,” said Mark McKenna, a law professor at the University of Notre Dame.

He said the court may have granted the latest appeal to clarify the difference between restricting speech based on content versus viewpoint.

“It’s hard to deny that there is a fair amount of inconsistency in the application of the rule,” he said.

But Adam Mossoff, a law professor at George Mason University, said just because the court ruled against a ban on disparaging trademarks didn’t mean a ban on scandalous ones would also fall

“Disparaging involves negative viewpoints expressed about people or groups of people,” he said. “Scandalous marks are not viewpoints about specific people or groups of people. These are just phrases that are negative generally.”

“If you express a profanity, you’re not necessarily saying anything about a group of people,” Mr. Mossoff said.

The eight justices who ruled in the Tam case also had different takes on what level of scrutiny courts should give to commercial speech restrictions, and that could get another test at the high court in the FUCT case.

“It will be interesting to see what happens in this case because it doesn’t involve viewpoints which are the category of speech which are typically protected by the First Amendment,” Mr. Mossoff said.

Court-watchers — and listeners — will also be waiting to see how the justices handle the offensive-sounding brand name.

During the Tam case, justices and lawyers had no problem using the band’s name.

Mr. Brunetti’s brand is a different case.

The U.S. Court of Appeals for the Federal Circuit, the lower court which ruled for Mr. Brunetti, his lawyer did repeatedly use the F-word before the three-judge panel — but he argued that was completely different than FUCT, which the company contends is an acronym.

“It’s F-U-C-T,” said the lawyer, John R. Summer, pronouncing each letter independently and saying the designer never intended anyone to say it like a word. He compared the name to companies such as IBM, which is also identified by its initials.

That didn’t fly with one of the judges, who pointed out Mr. Brunetti sold an “orgy” shirt with the FUCT label over images of people engaged in sex acts, and sold another shirt with the FUCT label over an image of boys raising their middle fingers.

“Giving the finger doesn’t necessarily mean that the T-shirt means [expletive],” Mr. Sommer retorted.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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