Can Offensive Words and Images Be Trademarked?

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Summary: Mixed messages are coming out on whether fashion designer Erik Brunetti should be allowed to trademark his brand “FUCT.”

In 1971, a 19-year-old donned a jacket with “FUCK THE DRAFT. STOP THE WAR” plastered across it. California charged him under the statute of “maliciously and willfully disturbing the peace and quiet of any neighborhood or person by offensive conduct.” The man was found guilty and sentenced to 30 days behind bars. Fast-forward 46 years to find Erik Brunetti fighting a similar fight.

  

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Back in the 70s, the United States Supreme Court found the California law violated the freedom of expression protection of the First Amendment. While the language on the jacket was provocative, it was not necessarily disturbing the peace because it was not directed at anyone. Brunetti is trying to trademark his brand name “FUCT” but is being turned down the U.S. Patent and Trademark’s Office.

Just three months ago the Supreme Court struck down the Lanham Act or Trademark Act of 1946 that governs trademarks, service marks, and unfair competition. During the case Matal v. Tam, the Supreme Court voted 8-0 that the act violated the First Amendment. Simon Tam had applied for a trademark for his band name “The Slants” but had been denied, resulting in the case ending up with the Supreme Court.

A federal appeals court is now tasked with deciding if Matal v. Tam extends to dirty words or graphics. According to Law.com, Brunetti’s lawyer, John Sommer, has been arguing their case at the Federal Circuit for the past three years. His case, along with a number of others involving vulgar material, were put on hold while Matal v. Tam was heard.

Sommer argued Tuesday that the ruling from Tam means, “You can’t refuse a trademark because it’s offensive.” However, Judge Timothy Dyk suggests that refusing trademarks may be constitutionally based on an FCC v. Pacifica Foundation ruling in 1978 that partially banned indecent speech from the airwaves.

The panel listened to the arguments from the PTO and Sommer for an hour Tuesday. The PTO contends that regulating trademarks is different from a full-fledged ban on speech. Joshua Salzman of the Department of Justice’s Civil Division stated, “We are not saying you can never say these words, you can never print these words on T-shirts, you can never call your company something but if you’re going to participate in the federal trademark registration program, these are the criteria” where profanity and graphic sexual images are not allowed.

Salzman believes that Supreme Court ruling left room for bans on indecent material. Judge Kimberly Moore countered, “Is it your view that this panel is free to disregard the en banc holding on that legal point, even though the Supreme Court affirmed and case no doubt on that holding?” She also questioned how banning offensive trademarks could be formed to be constitutional on the idea of a similar ban on offensive copyrights suggesting that the panel was leaning towards allowing the trademarks of offensive marks.

Do you think trademarks and copyrights should be given no matter what the material is? Tell us in the comments below.

To learn more about offensive material issues, read these articles:

• Flying Dog Brewery Wins First Amendment Case
• Supreme Court Allows Disparaging Trademarks
• Urban Outfitters Pulls Offensive Sweatshirt

Photo: rvca.com