What the "FUCT"?: Intellectual Property Laws against Scandalous Marks

July 9,2019:

Scandalous words and marks are now a great debate for getting registered as a trademark. In a recent case, the U.S. Supreme Court has the opportunity to address the immoral, deceptive, or scandalous prong of the Lanham Act.

Case is Lancu vs Brunetti. Erick Brunetti made an acronym of “Friends u can’t trust” as FUCT. He applied for trademark registration of this “FUCT” word for athletic apparel like shirts and other goods. It was refused as it was considered a scandalous term under Section 1052 (a) of the Lanham Act.

The issue is with the applicability of the provision of the Lanham Act. According to the US trademark law (Lanham Act), it disallows registration of a mark (1) that contains immoral, deceptive, or scandalous matter; or (2) which may disparage persons, institutions, beliefs, or national symbols, or brings them into contempt or disrepute. The First Amendment to the US Constitution prevents the government from making laws which abridge the freedom of speech.

On appeal to The Trademark Trial and Appeal Board (Board) affirmed the examining attorney’s refusal to register the mark pursuant to the Lanham Act’s restriction on registration of scandalous matter.

Next Brunetti appealed before the Court of Appeals for the Federal Circuit. The Court agreed with the USPTO. The Court affirmed that ‘FUCT’ falls within the scope of the scandalous matter, not only for the similarity to its abusive phonetic equivalent but also because of the use of such words in the young generation.

Further, the Federal Circuit reversed the Board, holding that the Lanham Act restriction against the registration of scandalous matter is unconstitutional because it violates the First Amendment right to free speech. A writ of certiorari was filed by USPTO to the Supreme Court.

Supreme Court relied upon the Judgement of Matal vs Tam. The case of Brunetti is pending before the Court. The Court is now under an immense situation to decide on the applicability of a statue. The next date of this case is the end of June.

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