The Supreme Court blocks offensive trademarks

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ERIK BRUNETTI (pictured), owner of a streetwear brand called FUCT, says the name is an acronym for “Friends U Can’t Trust”. The United States Patent and Trademark Office (PTO) saw it very differently. FUCT, he said, was “highly offensive” and “vulgar” with “negative sexual implications”. Pointing to a provision in the Lanham Act that prohibits the registration of “immoral or obscene” marks, the group refused to bless the brand name. Mr. Brunetti took the PTO to court and won; the director of the group then asked the High Court to review the case. On June 24, Justice Elena Kagan wrote a side opinion with Mr. Brunetti.

She did so for a simple reason: for years, the Supreme Court has interpreted the First Amendment to prohibit discrimination “against speech based on the ideas or opinions it conveys.” Like the rule’s cousin that the justices issued in 2017 — a block on “derogatory” trademarks — the “immoral or odious” is not unconstitutional because, wrote Justice Kagan, it “abuses certain opinions”. It is fine to refuse to register a mark because it is too similar to another or because it is “merely descriptive” (two of the few other criteria in the Lanham Act), but refusing claim because the term communicates an interesting idea weakens. the freedom of speech.

Therein lies the heart of Justice Kagan’s opinion Iancu against Brunetti is her analysis of immorality and obscenity, the two concepts relied upon by the PTO to deny registration to FUCT. “When is meaningful material ‘immoral’?” she asked. “According to a general definition, when it is ‘inconsistent with rectitude, purity, or good faith’; ‘wicked’; or ‘savage’.” Thus the Lanham Act approves signs that “support the common sense and morality of society” but rejects those that challenge social norms. That is blatant discrimination based on the opinion of a speaker.

Until now, Justice Kagan’s review required a unanimous vote. The nine judges agreed that the bar on signs of immorality must be thrown out. But an interesting divide opened up as to how to think about the “false” half of the rule under scrutiny. For Justice Kagan and five of her colleagues, “indecent” is just as problematic as “immoral”: it applies when a message is “offensive to the sense of truth, decency or propriety” or “Offensive”, she wrote. The Lanham Act empowers bureaucrats to approve signs “concerned with prevailing moral standards” and reject “those that encourage offense and censure”.

But three members of the court – Justices Stephen Breyer and Sonia Sotomayor and John Roberts, the presiding judge – chose to read “misleading” more narrowly. In an opinion partially concurring with and partially dissenting from Justice Kagan’s ruling, Justice Sotomayor warned the decision would “generate unfortunate results.” The PTO will no longer have any basis for rejecting marks that “contain the most vulgar, indecent or obscene words and images imaginable”. This situation could have been prevented, she suggested, if the court had understood that it was offensive to mean “simply rude, shocking or offensive in general”. Alleged immorality should not be a basis for denying an application, Justice Sotomayor acknowledged, because that relates to the content of opinions. But offensive signs should be prohibited “because of the manner in which they are expressed”. The First Amendment protects your right to free speech what you want in a sign, in other words, but it does not need the PTO to bless everyone method you might want to say.

Chief Justice Roberts did not sign Justice Sotomayor’s opinion but went out of his way to praise her “narrow construction” of the Lanham Act and agree with her point that the First Amendment infringing trademark protection. Businesses can use whatever names they like, whether the mark is registered or not, but Congress is fine to deny additional benefits to those who misrepresent them. Justice Breyer joined Justice Sotomayor’s 19-page opinion and added his own concurrence/dissent urging a more pragmatic, less rule-bound approach to imposing limit the limits of protected expression. “The First Amendment is not the Tax Code,” he said. It’s better to use “orderly rules” than formal categories and ask whether rules serve worthy goals without imposing too much pressure. felt. The government is supposed to “discourage” the use of defamation in commerce by withholding additional benefits from those who defame it.

All the justices seem to agree that Congress can write a new law that targets profanity or lewdness as long as there are only manners of speech – not ideas themselves – in a cabin. But as Justice Samuel Alito wrote, the judges “are not legislators and cannot substitute a new statute for the existing one” on their own. If Congress does not accept this invitation – which is likely because the Senate wishes not to legislate – will the malls and parks of America soon be filled with marked vulgarities and epithets?

Justice Sotomayor’s warning that “it will now be fun to register such trademarks” seems to be overreaching. There are already a number of “offensive words and images” on the register of registered marks. “FCUK” is there, as is “FWORD”. “FUCK BITCHES GET MONEY” has even earned a bureaucrat’s blessing. In fact, a search for the four-letter word beginning with “f” on the PTO database producing 383 relevant records. Few people – beyond those who have read deeply into the court footage of this case – have met these conditions, and no one will object on shopping or on public transport. Along with its other attributes, the decision is in Iancu it shouldn’t increase those odds significantly at all.

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