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Brunetti says the name of his company is FRIENDS U CAN & # 39; T TRUST. In 2011, he sought to register the trademark with the US Patent and Trademark Office in order to obtain benefits such as the extension of rights to the United States. Against other people trying to use the same brand.
But the office did not buy Brunetti's explanation. Instead, he said the word was "the phonetic equivalent" of the past of what looks like a vulgar term. She rejected Brunetti's claim, finding that the federal law prohibited the registration of marks made of an "outrageous" object.
The Supreme Court will review Monday for the second time in two years if the provisions of a federal law, the Lanham Act, violate the first amendment.
If the judges decide in favor of Brunetti, they could open the door to more so-called "scandalous" marks on the market and even expand a category of speech protected by the Constitution.
The Court will consider an opinion of the United States Federal Circuit Court of Appeals, in which a provision of the Lanham Act prohibiting the registration of "immoral" or "scandalous" marks constitutes an "unconstitutional restriction of freedom of expression ". The court pointed out that the Patent and Trademark Office had also applied the provision inconsistently in a manner that created uncertainty. For example, the government has approved brands such as "FUGLY".
The Court of Appeal said that although it found "such marks in the trade uncomfortable" and that it "was not impatient to see a proliferation" of these in the market, the First Amendment "Protects private expression, even private, which is offensive to the general public."
If the problem sounds familiar to you, it's because in 2017, the Supreme Court had overruled a separate provision of the law prohibiting the registration of marks likely to denigrate individuals, institutions, beliefs or national symbols.
The judges found that the "denigration provision" violated the First Amendment by discriminating on the basis of a particular point of view. This announcement was a victory for an Asian-American musician who dubbed his rock band "The Slants" in an attempt to use a term once used as an insult. His trademark application was dismissed as derogatory to "people of Asian descent", but the Supreme Court eventually ruled in his favor.
In the latter case, Brunetti's lawyers stated that the Supreme Court should also remove the "scandalous" provision. They argue that the application of the provision by the government has been arbitrary, allowing certain trademarks while inexplicably denying other closely related trademarks.
Solicitor General Noel Francisco argued in favor of the law, saying that, contrary to the "denigration" provision, the "scandalous marks" provision of the new case is "neutral" and does not violate to the Constitution.
He pointed out that this provision did not constitute a restriction of speech, as Brunetti could still use it on his clothing line and in his advertisements. He simply could not have access to the benefits offered by the government during the registration.
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