Making Offensive Trademarks Legal, If Not Fashionable (Incau v. Brunetti)

Some of the most challenging cases in law (and in political philosophy) are questions about the limits of freedom. It is generally accepted by all but the most extreme anarchists that some level or order and constraint on behavior must be maintained in a society. Opinions differ greatly as to methods, reasons, and applications more specific than this.

For Americans, finding the limits on the freedom of speech found in the first amendment is a perennial challenge.

 

I) The Case

Brunetti makes a clothing line called “Fuct.” Like many people who make something, he wanted to register a trademark for his brand. However, the 1946 law that governs trademarks in the US (the Lanham Act) prohibits “immoral… or scandalous” trademarks. The US Patent and Trademark Office rejected Brunetti’s application for a trademark because they found that the mark “Fuct” is “scandalous or immoral.” Brutnetti brought the USPTO to court (the court case is named for the director of the USPTO, Andrei Incau). The Supreme Court found that Brunetti cannot be denied his trademark registration on the grounds given by the USPTO, and declared that the section of the Lanham Act that prohibits immoral or scandalous trademarks is unconstitutional as a violation of the first amendment.

This case follows a previous ruling on disparaging trademarks. In 2017, the Supreme Court decided that an Asian-American music group called “The Slants” could not be denied their trademark on the grounds of the offensive nature of the name. This ruling found that another part of the Lanham Act was unconstitutional: the prohibition of trademarks which are disparaging.

Unsurprisingly, it has been difficult to apply a law that relies on such an amorphous and malleable concept as “offensive.” Since the Lanham Act was passed over 60 years ago, the USPTO has accepted and rejected trademarks that could be considered immoral or scandalous.

 

II) Potential Problems and A Public Safety Possibility

With disparaging and offensive trademarks no longer prohibited by the Lanham Act, what constraints remain?

One of the few things that consistently beats out freedom of speech in American law is public safety. The iconic example from a case in 1919 is that the act of shouting “fire!” in a crowded theater (where there is no actual fire) and causing a panic in which people could be injured or die is not an act protected by the first amendment.

One of the foreseeable problems with opening up trademarks to offensive and scandalous terms is the potential for trademarks which seek to harm people (for example, promote violence). There are already restrictions on trademarks that prevent some confusion with official government symbols. I think there is a line of reasoning that such existing restrictions serve the purpose of promoting public safety, and therefore rejecting trademarks that threaten public safety may be permitted.

Trademarks which are grossly offensive but do not threaten public safety may be more difficult to oppose or cancel. The 2017 Matal v Tam case ended the litigation around the cancellation of the trademark for the Washington, D.C. football team. Such is the difficult and challenging nature of creating and applying law: it is always a balancing act of various competing interests, and it is very difficult to create winners without creating losers.

 

III) You Can’t Be Refused Your Trademark, But I Can Refuse To Say It

I think there’s an Easter egg in this case: a hidden, subtle lesson that I’m not sure I fully grasp. As far as I can tell, for the entire proceeding of this case, none of the justices actually used the word that “Fuct” imitates. They did not say it during oral arguments and it does not appear anywhere in 44 pages comprising five different opinions.

That word, and the use of it, is fundamental to this case. The Court handed down an opinion that required the government to not prohibit the use of a word that the Court thoroughly (almost pointedly) declined to use. This suggests interesting things about language, culture, and law. Maybe this lack of usage underscores a point about the chasm between what is legal and what choices people can make. Maybe it illustrates a kind of objection-by-performance, demonstrating that people can act and speak in ways that differ from mere legal requirement.

Although this case changes the law to permit offensive language in trademarks, the cultural sensibilities and sentiments that once prohibited such speech remain. Tension between culture and law is rarely sustainable.

 

 

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