Fashion brand seeks trademark help from Supreme Court

A federal law says officials should refuse to register trademarks that are “scandalous” or “immoral.”

By Jessica Gresko / Associated Press

WASHINGTON — Erik Brunetti’s four-letter fashion brand starts with an “F” and rhymes with “duct.” The federal government calls it “scandalous” and “immoral” and has refused to register the trademark. Brunetti has a different word for his brand and designs: “thought-provoking.”

“We wanted the viewer to question it: Like, is that pronounced the way I think it’s pronounced?” he said of his streetwear brand “FUCT,” which began selling clothing in 1991.

On Monday, the Supreme Court will hear Brunetti’s challenge to a part of federal law that says officials should refuse to register trademarks that are “scandalous” or “immoral.” Brunetti says it should be struck down as an unconstitutional restriction on speech.

The government is defending the century-old provision. The Trump administration says in court papers that the law encourages trademarks that are appropriate for all audiences. It argues it isn’t restricting speech but rather declining to promote it.

Brunetti and others like him who are denied trademark registration under the “scandalous” provision can still use the words they wanted to register for their business, nonprofit or brand. They just don’t get the benefits that come with registering a trademark. For Brunetti, that would largely mean a better ability to go after counterfeiters who knock off his designs.

Brunetti would seem to have a strong argument. Two years ago, the justices unanimously invalidated a related provision of federal law that told officials not to register disparaging trademarks. In that case, an Asian-American rock band sued after the government refused to register its band name, “The Slants,” because it was seen as offensive to Asians.

In court, the justices had no trouble saying the band’s name, but Brunetti’s brand may be different. His lawyer, John R. Sommer, says he plans to say the individual letters of the name, “F-U-C-T,” which Brunetti sometimes does too. Another possible workaround: explaining the brand is something of an acronym for “Friends U Can’t Trust.”

Part of Sommer’s argument is what he sees as the arbitrary nature of the United States Patent and Trademark Office’s decisions about what gets tagged as scandalous or immoral. A lawyer working for the office who is from the South might find something “not nice” that wouldn’t faze a lawyer from the Bronx, Sommer said. That means “you can register profanity if you’re lucky” and you get assigned a lawyer who allows it, Sommer said.

Two New York University professors gave that argument substantial support in a brief they filed in the case. They showed that the office routinely refuses to register trademarks both by saying something is scandalous and, ironically, too confusingly similar to something that is already registered. For example, the office refused to register “FUK!T” for being scandalous and immoral but also confusingly similar to the already-registered “PHUKIT.” ”MIDDLEFINGER” was denied after “JONNY MIDDLEFINGER” was registered, and “Ko Kane” was rejected after “Kokanee” was registered. And those are just some printable examples.

Brunetti said the trademark office has registered trademarks “far more offensive than my mark.”

The trademark office declined to comment on the case.

If Brunetti wins, the public is unlikely to notice a whole lot of change, his lawyer said. Retailers will decide what products are appropriate for their customers, and Target and Walmart aren’t going to carry Brunetti’s brand, Sommer said.

Brunetti hopes a victory at the high court will help him pursue counterfeiters. In the nearly 30 years since he began his company from his bedroom in Venice, California, he’s produced thousands of clothing designs. Some of the best known are parodies involving the Ford logo and “Planet of the Apes.”

These days, he directs a staff of four from a downtown Los Angeles office. They release new clothing on their website about once a month. Some items have sold out in less than a minute, and new collections are always sold out in under three days, Brunetti said. Because of the items’ scarcity, some are resold on eBay for a profit, with a T-shirt that cost $40 sometimes fetching more than $100.

Brunetti said he’s never met anyone truly offended by his brand.

“Most people find it clever,” he said.

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