Lanham Act is FUCT
The Supreme Court is likely to finish striking down restrictions on offensive trademarks.
The Supreme Court has been chipping away at the government’s right to restrict speech it deems “obscene” since 1957. It seems to be on the precipice of striking down a longstanding prohibition on granting intellectual property rights to trademarks deemed inappropriate by the bureaucracy.
NPR’s Nina Totenberg:
Dirty words only make it to the Supreme Court occasionally. One of those occasions came Monday, in a case involving a clothing line, named “FUCT.”
The issue is whether the U.S. Patent and Trademark Office acted unconstitutionally when it refused to grant trademark protection to the brand name.
And, for the justices, the immediate problem was how to discuss the the F-word without actually saying it.
The “FUCT” clothing line, created by designer Eric Brunetti, is mainly hoodies, loose pants, shorts and T-shirts, all with the brand name prominently displayed.
Brunetti opened the line in 1990, aimed at 20-somethings, and he’s been trying to get the brand trademarked ever since.
“Go to eBay, and you’ll see a lot of counterfeits, or go to Amazon, and you’ll see lots of counterfeits,” he said, noting that the knockoffs are costing him real money.
If he could get his brand trademarked, he could go after the copycats and shut them down. The U.S. government Patent and Trademark Office, however, has consistently rejected his trademark application, contending that those letters, “FUCT,” violate the federal statute that bars trademark protection for “immoral,” “shocking,” “offensive” and “scandalous” words.
Brunetti’s case got a boost two years ago when the Supreme Court ruled that an Asian-American band calling itself “The Slants” could not be denied trademark protection. The trademark office had turned the band down, because it deemed the name racially “disparaging,” but the court said the denial amounted to unconstitutional viewpoint discrimination.
Dealing with the brand name “FUCT” proved a bit more daunting in the Supreme Court chamber Monday. Deputy Solicitor General Malcolm Stewart referred to the brand name as a “profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language.”
The government, he maintained, can deny trademark protection for that word. The justices pointed to a chart showing which terms had been granted trademarks by the government, and which ones had not. Most of the names on the chart — those granted and not granted — are not suitable for a general audience.
Suffice to say that while “FUCT” did not win trademark approval, “FCUK” did, and so did the well-known brand “FUBAR.” The word “crap” was registered in a trademarked name 70 times, but the S-word was consistently denied.
That prompted Justice Ruth Bader Ginsburg to ask how the trademark office defines what is scandalous, shocking or offensive? And, Ginsburg also inquired, do 20-year-olds generally find “FUCT” to be shocking or scandalous?
Probably not, conceded the government’s Stewart. But he said the term would still be shocking or offensive to a substantial segment of the population. Thus, it can be denied trademark registration, he argued.
Justice Neil Gorsuch pointed to the chart, declaring that it was hard to see why certain trademarks either using or alluding to profanity were approved and others denied.Justice Samuel Alito asked what would happen when “really dirty words” were at issue. How about “racial slurs”? asked Justice Stephen Breyer, adding those are more like “swear words,” as they are insults that sting and are remembered by those who are targeted.
Stewart replied that because of the court’s decision in the “Slants” case, most trademarks with racial slurs are now approved. But, as for the most offensive slur, the N-word, for now, he said, it is still not approved.
Representing “FUCT” designer Brunetti, lawyer John Sommer didn’t have an easy time either. Justice Breyer had this question: why doesn’t the government have the right to say, in essence, “You can use this language in your brand name, but the government doesn’t want to be associated with it by granting trademark protection?”“What I’m worried about,” said Breyer, is that if a racial slur is trademarked, it will appear as a product name “on every bus where it’s advertised” and on newsstands where children and others will see it.
“That’s not the audience Mr. Brunetti is appealing to,” Sommer replied.
Chief Justice John Roberts interjected. “But that may not be the only audience he reaches,” he noted.At the end of his argument, Sommer returned to the language of the statute, arguing that if “offensiveness” is the standard for turning down a trademark, “Steak ‘n Shake” can’t be registered either, because “a substantial portion of Americans believe that eating beef is immoral.”
NPR, “Supreme Court Dances Around The F-Word With Real Potential Financial Consequences”
Sommer’s closing point is brilliant because it points to the fact that offensiveness is a changing standard—and not always in the direction we think.
While the F-word and its variants appears with considerable frequency in my speech and in the everyday speech of those with whom I associate socially and professionally, it remains taboo. Its utterance in a movie pretty much guarantees that it’ll receive a PG-13 and enough appearances will render it an R. The fact that Supreme Court justices feel they can’t even mention the word in a professional conversation about it indicates that it still retains the power to offend.
And, indeed, while I use the word routinely, I tend to form negative judgments of people who use it in public or, indeed, who go around with it emblazoned on their hats and t-shirts.
Still, plenty of words and actions that were taboo in my memory are now routine. “Hell” and “damn” barely qualify as swear words anymore. And of the Seven Dirty Words You Can Never Say on Television that George Carlin made famous in his shocking 1972 classic bit, three are now acceptable for over-the-air broadcast. “Piss” is now verging on the standard word for urine/ation, “tits” is only mildly profane, and even “shit” has made its way to regular television. You still need cable or satellite for the other four.
But, back to Sommer’s point, it’s possible for words that were broadly acceptable to become taboo. We’ve written quite a bit in this space about attempts to deny trademark protection to the “Washington Redskins,” even though that’s a name that’s been used in the popular press since the 1930s and on unfiltered television broadcasts since the 1950s. Words routinely used to describe various religious and ethnic groups, the LGBTQ community, the disabled, and others in my memory are now verboten.
Should government be the arbiter of that? And should rights to intellectual property shift with the winds of social mores?
I’m less sympathetic to Brunetti and FUCT than I was Simon Tam and the Slants. In the latter case, a predominantly Asian-American band was reclaiming an ethnic slur to rob it of its hurtfulness. Brunetti is simply re-spelling a swear work and putting it on merchandise to profit from those who want to walk around drawing attention to themselves by shocking people.
That said, the Patent and Trademark Office isn’t arguing that Brunetti’s coinage of “FUCT” is insufficiently transformative to warrant intellectual property protection. That strikes me as a perfectly valid position. Instead, they’re arguing that his coinage isn’t worthy of protection because it’s vulgar. While Congress—which, after all, has the power under Article I of the Constitution to grant patents and trademarks— has indeed given them the authority to make that judgment, it’s difficult to find a compelling public interest that overrides the First Amendment.
The “swear words” line of questioning strikes me as silly. One can’t generally trademark a word in common usage. Neither “FUCK” nor “FUCKED” would be eligible for protection by themselves—but perhaps “FCK” would be. The same would apply for racial slurs. “Slants” was approvable as the name of a band but Tam and company would have no power to stop others from using the word in a different context.
Years ago, as mores started changing and people felt more comfortable walking around with vulgarities on their t-shirts or driving around with them on bumper stickers on their cars, many states and localities attempted to ban these displays on a variety of pretexts. One by one, they’ve been struck down when challenged in court.
Brunetti will almost surely win here. To the extent that “FUCT” is a transformative creation, he’s entitled to the rights to profit from it. Whether that’s a useful contribution to society is a separate question.
If there was a just god I and the SC would not have to endure the puritan sensibilities of so many others.
And one that only time will tell, tho I doubt it.
The Puritans still have a point though that trademarks can spread in ways their creators can’t imagine. Do we need to go through the hassle of banning FUCT clothing everywhere, simply because of free speech? So now every commonality and locality will have to ban the FUCT trademark from their premises if they wish to maintain their obscenity standards. Let’s burden mayors, priests, teachers and parents more by abandoning governance.
Then there’s the fact that trademarks are now universal and ubiquitous, and there’s hardly a way to avoid them because of globalization and the internet. For example, FUCT is probably a highly valuable trademark in China, Poland, and Brazil. Great! Eric McDouchebag should probably apply for trademarks there, instead of the US. Oh wait, he’s not, because he wants the weight of the US legal system to prop up his business.
Then there’s the fact that simply because an obscenity is misspelled, “iT’s nO lONgeR aN obSCenity.” This is a specious arguEment. Would his trademark be approved if it was “FUCKED?” Of course not. But a T cures all ills apparently in the US legal system.
For someone concerned about his trademark, Mr. Brunetti seems oblivious to those of others, if the photo on top represents one of his products.
The logo on the photo, is the official logo of PEMEX, Mexico’s state oil company.
I remember an interesting interview with Mike Rowe, the host and recurring victim of the legendary cable show Dirty Jobs. Lots of those dirty jobs involve dealing with some form of excrement, and the writers went ’round and ’round with the censors over what terms they could use for them in the clear and what terms would be bleeped. Rowe’s final statement was something like “So we couldn’t call it [bleep] or [bleep] or [bleep] or even [bleep], but for some reason it was OK to call it ‘poo’. So we call it poo.” A little lip-reading suggests that one of the forbidden terms was ‘poop’, which seems like a surprising place to draw the line…
We are rewatching Deadwood. I’m about twenty percent shy of a Swearengen.
That’s roughly where I am. In fact I realize I judge musical artists by it. I find that one well-placed F-bomb on an album can be quite powerful. But you litter them all over the place and it gets boring fast.
@Kathy: Good catch.
@Michael Reynolds: Speaking as a union carpenter who spent 8-12 hrs a day for 5-7 days a week for over 35 years with some of the most foulmouthed plumbers, electricians, ironworkers, glaziers, etc etc etc on the planet, I find Deadwood more than a little over the top.
The statutory bar against obscene marks has only to do with registering trademarks. You can sue under state law or federal law for trademark infringement without registering your mark.
The US Patent and Trademark Office does not “grant” trademarks. They register them and there are some advantages to having your trademark registered. But Brunetti is crying crocodile tears or needs better lawyers if he thinks he can’t sue infringers because he can’t get a registration. His suit is about raising his brand, not excluding his infringers.
@Franklin: The late great Harry Nilsson wrote an achingly beautiful song called “The Moonbeam Song”. It’s an almost perfect song with lyrics that could stand alone as a poem and the lazy melodic delivery sweeps you along in a wonderful vision. Almost perfect. Until he plunks the following line right in the middle
As much as I love that song, and as many nights I ended with a drink in my hand sitting in the dark listening to it, that one “crap” clicks at me like a skip on a vinyl record, every single time.
@Joe: Are you sure about this? There have been a lot of high profile trademark cases over the years and this is the first time I’ve ever seen this asserted. In fact, the argument before the court is explicitly the opposite.
Old joke:
A soldier returning from leave regales his comrades with his adventures. “So I met this f***g girl and we got to talking. I took her to a f***g movie, and we then f***g had dinner. She suggest we go to a f***g bar, where we both got f***g blind drunk, and then she invites me to her f***g place, where we engaged in sexual intercourse.”
@OzarkHillbilly:
Yeah, the writers were going for a sort of Mamet-Shakespeare thing where we’re meant to appreciate the rhythm, the music of the dialog. It works for the early episodes then becomes increasingly irritating as the dialog turns in on itself and becomes opaque and distancing.
I’m in the slightly absurd position at the moment of having to mentally prepare to create a TV series adaptation of one of my book series. Absurd because from where I stand at the moment the odds are pretty darned good that I’m wasting the energy. But in any case one of the things I’ve had to think about is the tone, the rhythm, the feel. With I think one exception I’ve always favored a sort of elevated naturalistic dialog – not natural dialog that’d be Bevis and Butthead, but dialog that sounds like what people might say if they had five minutes to think about it. I have an aversion to pushing myself as the writer into the story, which is what Deadwood does, insisting that the viewer be aware of the forced, unnatural dialog. I’m very much a ‘just tell the story’ guy. Deadwood’s a great show, but it did climb up its own butt after a while.
@MarkedMan: I don’t recall hearing that song before. Yeah, I’m not sure if that one qualifies as “well-placed”. If it was meant to add some levity or humor, I don’t think I get it.
@Kathy: I used to have a friend who grew up on the *Hill* in STL. One of his favorite sayings was “Fuck dem fucking guys.”
@Michael Reynolds:
I used to write a little bit (short stories) and I always felt that if the language was taking away from the story, it needed to go.
Side note, just to have some fun I once wrote a story about a cave trip from the point of view of the inside of my head, which is a pretty foul mouthed place to be. The twist was that I would use perfectly acceptable words and phrases, never using the one twice, to replace all the cursing.
Could not find anybody to print it, including a # who had run other stuff of mine. Oh well, I had fun anyway.
@Michael Reynolds:
From what I read/hear, that is the case with most of the writing done for TV/film, and I suppose stage.
@Franklin: I stopped swearing almost entirely just because it’s become boring. I now use odd and archaic phrases like Jumping Jehoshaphat and Zut Allors and Heavens to Betsy and it has more impact on the attention than ten shit fucks.
@Teve: I like, “WHAT in TARNATION are you DOING???” or “hammerheaded halibut” (thank you Yosemite Sam)
@MarkedMan: Section 43 of the Lanham Act (federal) allows infringement actions without registration. States all have their own trademark laws. Copyrights (which are exclusively federal) require registration as a condition of bringing suit. The statute at issue in this SCOTUS case is Section 2 of the Lanham Act, entitled “Trademarks Registerable on Principle Register; Concurrent Registration” and has only to do with the rules of obtaining a registration.
I love Harry Nilson and that song, MarkedMan. I also love (and have, within context, quoted) another great Harry Nilson lyric apropos of today’s conversation:
Given the Supreme Court’s ruling in 2017’s Matel v. Tam, where they found provisions of the Trademark Law that barred “offensive” trademarks unconstitutional, I suspect the Justices will strike this provision of the Lanham Act down.
I’m just curious about whether the SF law firm Morrison Forsberg’s logo
or their previous one
was on the chart.
@Joe: Re “You’re Breaking My Heart”: now that is a totally appropriate use of a curse word…
Every now and then I will hear the local youth, foul mouthed little shits that they are, express an expletive. I hardly react since I am a font of profanity myself.
I get a chuckle when they actually apologize “sorry sir” if they think I have heard them.
I just say “I invented that word. It starts with F and ends in UCK and it’s not fire truck!”
@Franklin: @MarkedMan: It could be generational, but profanity in music still stands out in my mind more than profanity in other venues. I came of age in the ’90s, which was around the time that profanity really started to go mainstream in music, through hip hop and alternative rock. Alanis Morrissette’s “You Oughta Know” from 1995 was one of the earliest examples I can remember of the F-word in a song that got air play on mainstream pop stations. Of course the word itself was bleeped out. That’s one of the problems: that *bleep* is a deeply annoying sound. That may be at least tolerable on, say, a comedy TV program, but a song’s a different matter.
Movies didn’t have this problem, because they’d been allowed to swear to their heart’s content ever since the creation of the MPAA in the late ’60s. Musicians could put the occasional swear word on an album, but because so much of the industry was based on the release of singles on radio (and eventually videos on MTV, which had even stricter standards), it constrained them in a way that it didn’t with film. As a result, a child of the ’80s like myself found swearing in movies, even some “children’s” movies, completely unremarkable growing up, yet when I started hearing the same words in songs, it somehow seemed irreverent and daring.
@OzarkHillbilly:
Hardly much of a catch. I see the logo every day, as it is in most gas stations in the country.
Another old joke:
An old lady calls 911 to report her neighbor walks by her house at all hours, whistling dirty tunes.
Profanity is a nonsense category. Words are tools. Unless a word is used with intent to harm, it is not itself harmful. Saying there is fat in the budget is not the same as saying ‘you’re fat.’ Just like ‘wanna fuck?’ is not the same as ‘fuck you.’ When I was a kid people would routinely assert that only stupid people needed curse words. Actually, the stupid was in saying that only stupid people needed access to the entirety of the English language.
Back when I was much younger (and AM radio played most music hosted by “radio personalities”) one of our local stations used to play “Men Men Men!” by Martin Mull. They always bleeped out the word “rubbers” in the lyric
(Clearly, this was pre-AIDS.)
Then of course there were the songs that were quite explicit and yet still got extensive airplay in the sixties and seventies because the slang was so new the censors didn’t know what the words meant. And so we got Lou Reed’s male hooker who never lost his head even when he was giving head…
@Michael Reynolds: I more or less agree with you, but there is a tendency to use profanity as a shortcut to getting noticed and it usually doesn’t hold up well. So in Nilsson’s case I think his use of the fairly innocuous “crap” grates, while I think his “You’re breaking my heart, you’re tearing it apart, so f*ck you!” is a minor comic classic. As is his “Take 54”
I know that I have heard the WE network bleep out the word ni99er in at least one episode of Law and Order.
AMC has pretty much ruined The Godfather by bleeping out that word and others.
Since I still use DVD’s and don’t stream movies I think I am getting the real deal.
Can’t tell for sure as the only time I saw Godfather at a theatre was when it was first released.
Fourty seven years ago (yikes!)
I like it when people label themselves as idiots. It sets my expectations when dealing with them.
@MarkedMan:
Le mot juste can only be juste in the right context. I always corrected my kids when they swore badly. “No, no, this is not a case for fuck, this is a goddammit.“
@Mister Bluster:
Whenever there are alternate takes of a scene made specifically for networks, there’s often a sense that they’re purposely made to sound as ridiculous as possible, maybe as a way of thumbing their nose at the censors. I’ve heard “gosh darn it” and “bull-squash,” among others. A classic example is the Ghostbusters edit in which Walter Peck is called “wally wick” and “some kind of rodent, I don’t know which.”
There’s also something distinctly artificial about TV programs that are forced to go halfway when depicting supposedly foulmouthed characters. For instance, in The Walking Dead, the word “shit” is used all the time (it seems to be Negan’s favorite word), but never “fuck.” (And this is from one of the goriest series of all time.) In older TV programs, words like “ass” or “bitch” or even “damn it” were enough to qualify a character for sailor-hood.
@Kylopod: I was thinking of “Ah, who the fuck are you?” slipped into The Who’s “Who Are You?”. IIRC it’s rarely or never bleeped.
But also, Pearl Jam’s “Jeremy” mentions that the boy seems like a “harmless little fuck”. I think the radio version might have the lyric muted?
@Kylopod: “Alanis Morrissette’s “You Oughta Know” from 1995 was one of the earliest examples I can remember of the F-word in a song that got air play on mainstream pop stations”
The earliest one I can think of is Joni Mitchell’s Woman of Heart and Mind from 1972 — although it never hit the AM band.
@Franklin: In at least one of the versions of “Evenflow” you can pretty distinctly hear Vedder saying “fuck it up,” and I was hearing this clear as day when it was played on the radio as far back as when it first came out in the early ’90s. I guess it was so mumbled either the censors didn’t notice or they figured no one else would.
But then, I’ve always been more than a bit baffled at how the how the line “You make a dead man come” from the Stones’ “Start Me Up” (1981) ever made it through.
@MarkedMan: “Hey babe, take a walk on the wild side.”
…there’s often a sense that they’re purposely made to sound as ridiculous as possible,..
Or no sound. In the most recent airing of Scarface that I saw AMC(?) dropped the sound altogether so as not to offend. It was easy enough to literally fill in the blank by the context and their mouth movement.
It happened so many times they might as well have shown it as a Silent Movie.
My view is that in most cases, the overuse of swear words indicates a tedious lack of creativity on the part of the issuer. I can call someone a “leering cockroach” or “having the brains of a lobotomised Rigellian slime mould” and get more of a reaction than calling him “a sh*thead”.
….of course, there’s always all those epithets I learned in Japanese and the pseudo-epithets lifted from Captain Haddock of Tintin: “Mille de mille de mille sabords!” “Bachi-bazook!” “Tonnerre de Brest!”
@Franklin: In all of A Perfect Circle’s CD “Mer de Noms” there is exactly one cuss word positioned in a very specific spot in “Judith” for effect. The impact of that cannot be overstated.
Trademarks are property rights and registrations are merely a mode to facilitate monetizing them; how freedom of speech got entangled in the matter is representative of an over litigious society. A find ironic that the Supreme Court cannot say the offensive term yet may force examiners to approve them- we shall see. In the American vernacular there are four terms (and their variants) that I think are supremely offensive (they begin with the letters f, s, c and n)- so it can be a statute that can be narrowly construed. Of course, if the Court overturns the statute, watch for hundreds if not thousands of trademarks with the federal imprimatur ®️and I, for one, would find that offensive.
@just nutha:
The most egregious TV censorship I ever saw was on a broadcast of Mel Brooks’s Blazing Saddles. When Madeline Kahn sings “I’m Tired”, there’s a lyric that goes
No profanity at all — but the network edited out the line “…and always too soon”. Not bleeped — just snipped that out, so that there was an abrupt transition from “…and going and coming…” to raucous laughter. Totally nonsensical — and for anyone who was going to understand the joke, there was no point in snipping it.
I decided to look it up, and I found it. Enjoy:
https://www.youtube.com/watch?v=4koLWPq2qDY
Given that I now believe that our two new socially conservative justices, Gorsuch and Kavanaugh, will probably vote to ‘legalize’ FUCT, I anticipate that base Republican social conservatives will now cease complaining about how liberals and progressives are debasing our pristine culture.
@al Ameda: Yeah, right…