The supreme judges spent the morning talking about a "f-word"

April 15, 2019, 16:39 GMT

By Pete Williams

WASHINGTON – A simple majority of the US Supreme Court seemed ready Monday to allow a trademark for a California clothing brand using a form of the word f. But the judges did not seem very happy with the prospect.

Eric Brunetti chose a brand that matches the subversive and anti-establishment theme of his streetwear line. The only four-letter word "Fuct" appears on his brand of t-shirts, hoodies, jackets and shorts.

But the federal government refused to issue a trademark to it, citing a legislative provision forcing the Patent and Trademark Office to refuse the registration of the proposed brands "outrageous" or "immoral".

Government lawyers concluded that Brunetti's trademark name was phonetically equivalent to the past of what a Justice Department attorney called "the secular paradigmatic word of our culture".

The Trademark Office considers that a name is scandalous if it "shocks the meaning of truth, decency or propriety" or "scandalous, offensive, irresponsible". Federal courts have stated that the prohibition also applies to the terms "vulgar, tasteless, indelicate and morally rude".

For this reason, several of the judges stated at the Monday hearing that the law was a restriction of the view, which is not allowed by the first amendment. Two years ago, the court struck down a parallel provision in the federal law prohibiting trademarks that denigrate people or "make them guilty of contempt or discredit".

As a result of this decision, Justice Department lawyer Malcolm Stewart told the judges that the government was likely to restrict its application so that only obscene or offensive terms would be removed.

"How is it determined?" asks Judge Ruth Bader Ginsburg, "that a word is shocking? Is it a substantial part of the public? Would a group of 20 years find it shocking?"

Judge Elena Kagan said the law swept more widely. "If Congress wants to pass a narrow law, it can do it," she said. "You are asking us to maintain the law on the basis of a commitment to apply it more closely.It is a strange thing for us."

Stewart also said the law did not restrict speech, as Brunetti could call his clothes as he wished. He just can not get a mark. "The law is not a limitation of speech," Stewart said. "It's a limitation of a government benefit."

"You continue to tell us that it is a government advantage," said Judge Sonia Sotomayor. "But people pay for it and get some legal rights."

Several members of the tribunal were also concerned that the Trademark Office operates without a clear standard. Justice Brett Kavanaugh stated that the result is that the law is applied inconsistently.

Judge Neil Gorsuch expressed a similar concern. "I can not see the rational line, is it a coin?"

John Sommer, a lawyer from Brunetti, a native of Irvine, California, said in his memoirs that the government had issued a trademark for the brand name "FCUK", which, according to this company, corresponds to French Connection UK , a clothing line called "Fword". and an online dating site known as "WTF, is it my love life ?!"

But Sommer was not very lucky in trying to convince the court that Brunetti's term "trademark" is not a notoriously dirty word form.

"Oh, come on, be serious," Judge Samuel Alito said. "We know what he's trying to say."