Supreme Court sides with apparel maker who said government violated First Amendment by denying ‘subversive’ clothing line trademark

J. Scott Applewhite | AP
J. Scott Applewhite | AP
Los Angeles artist Erik Brunetti, the founder of the streetwear clothing company "FUCT," leaves the Supreme Court after his trademark case was argued, in Washington, Monday, April 15, 2019.
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The Supreme Court on Monday struck down the federal government’s ban on registering “immoral” and “scandalous” trademarks, saying it violates the First Amendment.
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WASHINGTON – The Supreme Court on Monday struck down the federal government’s ban on registering “immoral” and “scandalous” trademarks, saying it violates the First Amendment.

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints if conveys,” Justice Elena Kagan said in announcing the decision.

“The ban on ‘immoral’ and ‘scandalous’ trademarks does just that.”

Five justices joined Kagan’s opinion. But others worried it went too far, and would leave the federal trademark office powerless, in the words of Justice Sonia Sotomayor, “to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.”

Kagan was joined in the majority by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito Neil Gorsuch and Brett Kavanaugh.

Chief Justice John Roberts and Justice Stephen Breyer shared Sotomayor’s concern that the opinion went too far.

Iancu v. Brunetti is a trademark dispute in which Los Angeles artist Erik Brunetti sued the government, saying it violated the First Amendment by refusing to register the trademark for his “subversive” clothing line: FUCT.

A free-speech fight over a trademark might sound familiar. Two years ago, when an Asian American band, the Slants, supported by a professional football team, the Washington Redskins, challenged the law against registering “disparaging” trademarks, the court ruled it was unconstitutional.

Brunetti was challenging a neighboring provision in the law, which prohibits the registration of “immoral” or “scandalous” trademarks.

The U.S. Court of Appeals for the Federal Circuit ruled in his favor in late 2017, citing the Supreme Court’s decision striking down the “disparaging” provision.

Brunetti’s trademark met the definition of scandalous, a unanimous panel of the court decided. But it decided that the provision is unconstitutional.

“There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace,” wrote Judge Kimberly A. Moore. “The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public.”

The government argued that registering a trademark is a benefit, not a restriction on speech. Brunetti has called his clothing line FUCT since 1990 and may continue to do so.

Brunetti is not being penalized for his viewpoint, the government said, but because of the content of his trademarks. The government’s decision is based on content: the government’s lawyer at oral argument said it “would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of . . . perhaps the paradigmatic word of profanity in our language.”

But Brunetti said that argument was undercut by a decision by the U.S. Patent and Trademark Office review board that takes into account his speech, referencing his “assaults on American culture [that] critique capitalism, government, religion and pop culture” and referring to his “extreme nihilism.”

 



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