Vulgar Trademarks Get U.S. Supreme Court Review in Speech Clash

(Bloomberg) -- The U.S. Supreme Court agreed to decide whether the federal government can refuse to grant legal protection to a trademark because officials find it to be vulgar or lewd.

Taking up a new free-speech clash, the justices will review a decision that struck down a century-old ban on federal protections for “scandalous” and “immoral” trademarks.

The Trump administration says that, unless the lower court ruling is overturned, the government will be forced to open a federal registry to trademarks containing profanities and graphic sexual images. The case before the court involves a clothing line known as “FUCT.”

In tossing out the ban, a federal appeals court in Washington said the First Amendment “protects private expression, even private expression which is offensive to a substantial composite of the general public.”

The Trump administration says the disputed provision isn’t about private expression. The government says artist and designer Erik Brunetti, who owns the clothing line, is free to use the FUCT label but doesn’t have a right to claim the legal benefits of federal registration.

The provision “simply reflects Congress’s judgment that the federal government should not affirmatively promote the use of graphic sexual images and vulgar terms by granting them the benefits of registration,” U.S. Solicitor General Noel Francisco argued in court papers.

Federal registration gives trademark owners protections on top of the rights they already have under state law. Registration can confer exclusive rights in parts of the country where no one was already using the name or image, help owners win lawsuits, and put would-be competitors on notice that a trademark is legally protected.

The Supreme Court in 2017 threw out a similar provision affecting trademarks seen as disparaging. Although that ruling was unanimous, the justices splintered in their reasoning, leaving the exact implications unclear.

Brunetti joined the Trump administration in urging the Supreme Court review, but he said the appeals court was right to strike down the provision. He said the government has applied the ban selectively -- allowing registration of “fcuk,” “wtf is up with my love life?!” and “fword,” as well as various scatological references and words describing sexual activity.

“The scandalous clause is not a content-neutral rule that rejects all profanity, excretory and sexual content,” he argued. “Instead, the government is selectively approving or refusing profanity, excretory and sexual content based upon the level of perceived offensiveness.”

The U.S. trademark office has suspended consideration of vulgar and lewd marks during the court fight. Among those on hold are applications by the all-women music groups Pussy Riot and Thunderpussy over their band names. Miramax LLC is awaiting word on its bid to register “bad mother f---er,” without the hyphens, for use on Pulp Fiction-themed goods.

The court will hear arguments in April and rule by the end of June. The case is Iancu v. Brunetti, 18-302.

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