Protecting children: It is time to discuss the next case of the Supreme Court.
Iancu v. Brunetti Erik Brunetti, a Los Angeles artist, filed a lawsuit against the US government, claiming that he was violating the First Amendment by refusing to register the brand for his "subversive" clothing line: FUCT.
The briefing contains more blasphemy than a fraternity party, but Brunetti's lawyer, John Sommer, told the court that he did not intend to turn Monday's hearing into an oath.
"One does not expect that it will be necessary to refer to vulgar terms during debates," wrote Sommer. "If that proves necessary, the discussion would be purely clinical, analogous to the moment when medical terms are discussed."
A fight for freedom of expression for a brand may seem familiar. Two years ago, when an American-born group, The Slants, backed by a professional football team, the Washington Redskins, challenged the law against branding "disparaging" brands, the court found it unconstitutional.
"Offending is a point of view," wrote Judge Samuel A. Alito Jr. "We have repeatedly stated that" public expression of ideas can not be prohibited simply because the ideas are offensive to some of them. their listeners ".
Brunetti challenges a similar provision of the law, which prohibits the registration of "immoral" or "scandalous" marks. And his chances are good.
US Court of Appeals of the Federal Circuit ruled in his favor at the end of 2017, citing the Supreme Court ruling overturning the "derogatory" provision.
Brunetti's trademark met the definition of scandal, decided a panel of the court unanimously. But he decided that this provision was unconstitutional.
"There are words and images that we do not want to be confronted with, neither as art, nor on the market," Judge Kimberly A. Moore wrote. "The First Amendment, however, protects the private expression, even the expression that shocks a significant number of people from the general public."
The Government contends that the Court of Appeal has erred. The registration of a trademark is an advantage, said Solicitor General Noel J. Francisco in his brief, and not a restriction of the word. Brunetti has been calling his FUCT clothing line since 1990 and could continue to do so.
Brunetti is not penalized for his point of view, says Francisco. The government's decision is based on the content and evidence that the mark "would be perceived as equivalent to the vulgar word for which it is a namesake".
But Brunetti said this argument was compromised by a decision of the US Patent and Trademark Office's Board of Review, which takes into account his speech, referring to his "attacks on American culture". [that] criticizes capitalism, government, religion and pop culture "and referring to his" extreme nihilism ".
Sommer wrote in his memoir that the immoral and scandalous provisions of the law "prohibit the registration of marks involving politics, religion, social issues, ethnicity, the role of women, drugs, violence, humor, double meaning, slang, patriotism, blasphemy, and sexual references. Any mark likely to offend any part of the public must be refused. "
Brunetti said in an interview that he considered FUCT to be part of his artistic brand. He began using the term in print ads in black and white even before he was sure of what he was going to sell.
"This is an acronym – Friends U Can not Trust," said Brunetti. "We like the fact that the logo has a very corporate look, a corporate aesthetic, but that it can be pronounced in a very different way."
Brunetti applied the term to his clothing line, which he said came from his past as a skater.
GQ magazine wrote that the brand "introduced oversized and ultra-loose skating pants, a silhouette that has conquered every corner of the fashion world. And they have put in place a tough, outlaw philosophy that streetwear brands have been trying to emulate for decades. "
Francisco warns the court that lifting the outrageous prohibition would mean "similar exclusions from the obscene or vulgar speech of other government-sponsored activities, would be questioned".
But the government has received no support from outside the Supreme Court, while Brunetti is supported by groups such as the Pacific Legal Foundation, the Cato Institute and the American Civil Liberties Union.
Simon Tam, founder of The Slants, also filed a brief on behalf of Brunetti.
"In 1905, when this provision was passed, the First Amendment was an infrequent basis for litigation," and "the government has regularly narrowed the offending speech," said Tam's memoir.
"On the contrary, today, the jurisprudence of the First Amendment is one of the basic products that allows not to restrict speech in order to prevent listeners from being offended."
In addition, argues Brunetti, the ban is applied so arbitrarily that it must be considered unconstitutionally vague.
Two New York University law professors, Barton Beebe and Jeanne C. Fromer, filed a brief on behalf of Brunetti that the decisions of the Patent and Trademark Office did not follow the logic.
The tandem examined 6.7 million trademark applications from 1985 to 2016. They found that the attorneys at the board accepted the "F U 2" mark for clothing, but not "F.U".
"Obscenicons", strings of symbols used in comics to represent obscenities "have also been treated differently.
"In 2009, the PTO had not issued any immoral or outrageous refusal to the $ #! + Mark for use in conjunction with gift items and fancy clothes," said the professor's memoir. "On the other hand, the PTO has issued immoral or scandalous refusals to NO $ #! + And APE $ #! +, Both were deposited a few years later.
Indeed, the professors found more than 100 cases in which the office refused a trademark registration because it was scandalous. and because it was too close to the one already accepted.
Sommer said that if his client won, the public should not be afraid of being confronted with more vulgarity. Retailers do not want to offend their customers by wearing such brands, he said.
Indeed, Brunetti indicates that FUCT products are no longer available in the "upscale shops" that previously housed his line.
"You can only buy our products online," he said.