On Friday, the Supreme Court announced it would hear the case Andrei Iancu v. Erik Brunetti, which focuses on whether or not the Lanham Act’s ban on “immoral” or “scandalous” trademarks is unconstitutional under the First Amendment’s protection of free speech.
In 2011, Erik Brunetti attempted to register the trademark “FUCT” for a clothing brand he had founded in 2011. The U.S. Patent Trade Office (USPTO) rejected the application under the Lanham Act.
The USPTO Trademark Trial and Appeal Board upheld the decision, saying the brand was displayed with “strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny.” As such, the board argued that Brunetti’s use of the trademark would “be perceived by his targeted market segment” as the obscene word for which it is a homonym (i.e. f**ked).
Brunetti appealed, and the U.S. Court of Appeals for the Federal Circuit struck down the USPTO’s ruling as a “content-based restriction on speech” subject to strict scrutiny under the First Amendment.
In the 2017 Supreme Court case Matal v. Tam, the Court struck down the Lanham Act’s separate prohibition of trademarks that “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” as unconstitutional under the First Amendment.
By agreeing to hear this case, the Supreme Court has given the U.S. government another chance to argue that obscene patents should not be allowed, despite the First Amendment’s protection of free speech.
In the era of #MeToo, this case may lead activists to condemn the FUCT brand’s misogyny and support what Brunetti and the federal circuit considered a restriction on free speech.
Perhaps the Lanham Act is not as FUCT as it seemed.
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