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Published On: Mon, Jun 24th, 2019

Supreme Court defends offensive trademark, protecting Redskins and other logos

In a 6-3 decision, the Supreme Court on Monday sided with a Los Angeles designer who sought to trademark “FUCT” for his clothing line but was blocked by a federal law prohibiting registration of “immoral or scandalous” ideas.

“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords),” wrote Justice Elena Kagan in the majority opinion. “The Lanham Act covers them all. It therefore violates the First Amendment.”

Redskins offensive? photo Katidid213 via wmc

Kagan wrote that judging which ideas are “immoral or scandalous” is highly subjective and potentially discriminatory.

“The statute, on its face, distinguished between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation,” she writes. “The statute favors the former and disfavors the latter.”

Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor dissented, in part, in the decision. The trio would have struck down the “immoral” portion of the law but upheld it’s ban on trademarking “scandalous” ideas.

“Refusing registration to obscene, vulgar or profane marks does not offend the First Amendment,” Roberts wrote in his dissent. “Whether such marks can be registered does not affect the extent to which their owners may use them in commerce to identify goods.”

Justice Breyer noted that businesses can still use “highly vulgar or obscene words” on their products and in marketing. “How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much,” he said.

Justice Sotomayor warned of an impending rush to trademark “the most vulgar, profane or obscene words and images imaginable.”

Los Angeles designer, Erik Brunetti, argued that the U.S. Patent and Trademark Office applies the law inconsistently and has already approved the registration of hundreds of potentially offensive terms. “FCUK,” “THE F WORD,” and “F’D” are all trademarked, for example.

Brunetti says “FUCT” is pronounced by saying each letter and is not meant to be offensive.

“Government bureaucrats should not be deciding what speech is or is not deserving of trademark protection based on what they consider to be too ‘scandalous’ and ‘immoral,’” said ACLU attorney Emerson Sykes. “That is, at its heart, government suppression of speech based on the viewpoint expressed. It is also, as the Supreme Court today reaffirmed, unconstitutional.”

Losing trademark protection wouldn’t have forced the team to change its name, but it would have potentially cost the team money in merchandise sales, which might have been a first step toward Dan Snyder changing his stated determination “never” to change the name of his football team, the Redskins.

Now Snyder doesn’t have to worry about that.

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About the Author

- Roxanne "Butter" Bracco began with the Dispatch as Pittsburgh Correspondent, but will be providing reports and insights from Washington DC, Maryland and the surrounding region. Contact Roxie aka "Butter" at [email protected] ATTN: Roxie or Butter Bracco

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