June 28, 2019

Supreme Court: The Trademark Is FUCT, Like It or Not

2 min

The U.S. Supreme Court has now fully stripped the U.S. Patent and Trademark Office (PTO) of its ability to refuse to register trademarks that reflect controversial views or ideas. In the recent case of Matal v. Tam, the Court invoked the First Amendment and found it improper for the PTO to refuse to register the brand REDSKINS on the basis that it disparages a group of people. Now, in Iancu v. Brunetti, the Court has again invoked the First Amendment's free speech protections and found it improper for the PTO to refuse to register the mark FUCT on the basis that is immoral or scandalous. The Court's latest decision makes it clear the PTO may no longer engage in "viewpoint discrimination" after years of refusing to register marks that reflect highly controversial views or ideas.

In one of the most compelling parts of the opinion, the Court shines a light on marks the PTO has approved in the past with ones it refused. The PTO refused KO KANE but approved SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE; it refused BONG HITS 4 JESUS but approved PRAISE THE LORD and JESUS DIED FOR YOU; it refused BABY AL QAEDA but approved WAR ON TERROR MEMORIAL. Clearly the PTO was discriminating against fringe views and ideas. The Court noted, "'Love rules'? 'Always be good'? Registration follows. 'Hate rules'? 'Always be cruel'? [It does n]ot."

So FUCT will now be registered for clothing and an expanse of other goods and services, like it or not. Yet the final arbiters will remain consumers, as they either embrace or reject the brand. Indeed, consumers remain free to make discriminating choices based on their own views or ideas, no matter what might happen at the PTO.