Supreme Court case raises issue of profanity in trademarks

| Apr 17, 2019 | Trademark Law |

Swear words may be a fact of life for many New Jersey residents, but the U.S. Supreme Court is considering whether they can also be a part of a protected trademark. The justices are hearing a case brought by a clothing designer based in Los Angeles who launched a streetwear brand called “FUCT”, sounding similar yet spelled differently from a common curse word. His application for a trademark was denied under a provision that allows requests for “immoral” or “scandalous” marks to be turned down.

The designer says that this provision is an illegitimate limit on freedom of expression and has taken his case to the nation’s highest court. He earlier won a ruling in 2017 in a federal court, but the Trump administration appealed the result. The administration said that if the law was removed from the books, sexual and graphic imagery and expletives would consume a significant amount of market space. The trademark law has been in place for over 100 years. In 2017, the Supreme Court ruled against another provision of the law that banned trademarks considered “disparaging”. At the time, it noted that offensive speech still cannot be banned by the government.

However, the U.S. Solicitor General distinguished that case, saying that disparagement or offensiveness may express a particular viewpoint and the limit could be considered a form of political censorship. On the other hand, he said that limits on vulgarities or sexually explicit content did not hinder any particular viewpoint or political perspective.

Civil liberties advocates noted that prosecution or denial may be far more likely in cases where the government disapproves of an underlying message. People who are concerned about how they can protect their goods or ideas from counterfeiting or competitors can meet with an intellectual property lawyer for advice.

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