First Amendment, Four Letters

By Shivani Patel, J.D. Candidate, 2020

F-U-C-T. These four simple letters have led to a major change in U.S. trademark law. Almost thirty years ago, Erik Brunetti launched the clothing brand “Friends U Can’t Trust”, abbreviated as FUCT.[1] After gaining popularity as a counterculture brand, Brunetti tried to trademark the FUCT brand without much luck.[2] The USPTO rejected his application, reasoning that the Lanham Act did not allow “scandalous” words to be trademarked.[3] Despite this rejection by the USPTO, Brunetti did not give up his desire to trademark FUCT.

In 2017, Brunetti was handed a golden ticket. In the landmark case, Matal v. Tam, the Supreme Court unanimously held that the Lanham Act’s prohibition on disparaging marks violated the First Amendment.[4] This opened the door for Brunetti to take action. After the Trademark Trial and Appeal Board upheld the USPTO’s decision to deny Brunetti’s application, he appealed to the D.C. Circuit Court of Appeals.[5] The court there agreed with Brunetti, holding that the “scandalous” portion of the Lanham Act violated the First Amendment.[6] The Director of the USPTO, Andrei Iancu, then appealed the decision to the Supreme Court hoping to have the ruling overturned.[7]

Surprisingly, Brunetti agreed with Iancu. He argued that the Supreme Court should grant Iancu’s writ for certiorari despite having won in the lower court.[8] His rationale was based primarily on the importance of the First Amendment, noting that “all speech is free speech. It cannot be selective. The moment you start shutting people down because you disagree with them or it hurts your feelings, that’s when we start going down a very slippery slope.”[9] Iancu, however, continued to argue that FUCT should nevertheless fail to reach trademark status because it was profane, scandalous, and vulgar, and was therefore not protected under the First Amendment.[10]

In the Supreme Court ‘s opinion released this past summer, the Court acknowledged that the mark was indeed profane, stating “. . .the mark . . . is pronounced as four letters, one after the other: F-U-C-T . . . But you might read it differently, and, if so, you would hardly be alone.”[11] While the Court agreed with Iancu and the USPTO that the FUCT name was scandalous, the Court  nevertheless held that the scandalous portion of the Lanham Act was unconstitutional.[12] The Court used the same analysis that it used in Matal; the denial of Brunetti’s application was a violation of the First Amendment because it engaged in viewpoint discrimination.[13] Justice Kagan, writing for the majority, noted that an essential feature of the First Amendment is that the government cannot discriminate based on viewpoint.[14] Justice Kagan looks to case law and indicates that viewpoint discrimination is a type of content discrimination and is unconstitutional.[15]

This decision is a victory for the First Amendment. Free speech is the cornerstone of any great democracy, and Iancu v. Brunetti demonstrates how the Supreme Court is committed to preserving this integral part of our nation’s free society. Although there might still be those who will challenge rulings like this in the future, for now, we know that free speech is safe, sound, and (not) FUCT.

[1] Samuel Hine, How O.G. Streetwear Brand FUCT Took a Free Speech Case All the Way to the Supreme Court, GQ (Jan. 30, 2019), https://www.gq.com/story/fuct-erik-brunetti-supreme-court-case.

[2] Id.

[3] Id.

[4] Matal v. Tam, 137 S. Ct. 1744 (2017).

[5] In re Brunetti, 877 F.3d 1330 (Fed. Cir. 2017).

[6] Id.

[7] Robert Barnes, Supreme Court to decide if trademark protection can be denied to ‘scandalous’ brands, Wash. Post (Jan. 4, 2019), https://www.washingtonpost.com/politics/ courts _law/supreme-court-to-decide-if-trademark-protection-can-be-denied-to-scandalous-brands/2019/01/04/83c18948-1061-11e9-8938-5898adc28fa2_story.html.

[8] Id.

[9] Natasha Bach, Oral Arguments Could Get Interesting When FUCT Free Speech Case Hits SCOTUS, Fortune (Feb. 5, 2019), https://fortune.com/2019/02/05/supreme-court-free-speech-patent-office-fuct/.

[10] Iancu v. Brunetti, No. 18-302 (U.S. June 24, 2019).

[11] Brunetti, slip op. at 1-2.

[12] Id. at 11.

[13] Matal v. Tam, 137 S. Ct. 1744 (2017).

[14] Brunetti, slip op. at 4.

[15] Id. (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829-830 (1995)).

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