Saturday, 17 August, 2019

Supreme Court hands Redskins a victory in trademark case

SCOTUS: Ban on “FUCT” trademark registration violates First Amendment Supreme Court hands Redskins a victory in trademark case
Patty Aguilar | 25 June, 2019, 10:10

The Supreme Court on Monday ruled that the federal ban on registering "immoral" and "scandalous" trademarks is unconstitutional, saying the government's disapproval of offensive speech can not justify withholding a government benefit.

The Trump administration had warned that invalidating the law would unleash a torrent of extreme words and sexually graphic images on the marketplace.

The U.S. Patent and Trademark Office, which administers the intellectual property statute also known as the Trademark Act of 1946, previously rejected a trademark application for the word "F**T" (letters omitted) by clothes-maker and artist Erik Brunetti, who has said F**T stands for "Friends U Can't Trust".

'Bureaucrats should not be deciding what speech is or is not deserving of trademark protection...' He applied for a trademark for the brand name in 2011, before ultimately being denied.

The case, Iancu v. Brunetti, pitted a clothing manufacturer of the aforementioned brand name "FUCT" against the U.S. Patent and Trademark Office (PTO), which refused to accept the trademark registration because of its vulgar nature. In an interview on a streetwear magazine site last month, Brunetti said a Supreme Court win will give him a sense of freedom.

The ruling is considered a victory for longtime streetwear clothing designer and artist Erik Brunetti who co-founded his company selling hooded sweatshirts, loose-fitting trousers, shorts, and T-shirts in 1990 with a shrewd name questioning authority and society.

Some applications that were identified as "scandalous" had also been turned down because they would infringe on existing trademarks, showcasing the subjectivity of the now-defunct rule.

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Writing for a 6-3 court, Justice Neil Gorsuch sided with a trade association representing grocery retailers, holding that FOIA does not require disclosure of such information so long as the business labels it as "confidential", and provides it to the government under an assurance of privacy. 'Is it a flip of the coin?'

To Stewart's point, amid the court battle, the Fuct website has displayed a tongue-in-cheek message, playing on the similarity between its names and the obscene curse word.

Brunetti's clothing line is mainly hoodies, loose trousers, shorts and T-shirts, all with FUCT prominently displayed. He called it an important statement "at a time when free speech is under attack" in the U.S.

Deputy solicitor general Malcolm Stewart, who represented the U.S. in defending the law said "Fuct" had been denied because it was so similar to the expletive. "The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public". She said the USA trademark office had rejected applications for "Agnus Dei", or Lamb of God, for a safe, and "Madonna" for wine, on the grounds they would offend most Christians.

Answered Justice Samuel Alito Jr., who concurred with Kagan's opinion: "Viewpoint discrimination is poison to a free society". A divided court ruled that if a trademark registration bar is viewpoint-based it's unconstitutional and that the disparagement bar was in fact viewpoint-based.

Other justices on both sides of the court's ideological divide anxious the ruling went too far and would leave the Patent and Trademark Office powerless to refuse, in the words of Justice Sonia Sotomayor, "registering marks containing the most vulgar, profane, or obscene words and images imaginable". "The rejected marks express opinions that are, at the least, offensive to many Americans", Kagan said.

The government maintained that the Lanham Act did not violate the First Amendment, arguing that trademarks symbolized a subsidy for messages that the government wished to promote rather than a ban on that form of speech being sold in a good or service.

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