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Clothing Brand FUCT Destroys Trademark Section 2(a)

By George Khoury, Esq. on December 18, 2017 | Last updated on March 21, 2019

Some cases defy expectations. In Re: Erik Brunetti is exactly one of those cases. Brunetti sought to register his clothing brand's trademark with the US PTO. However, his trademark application was rejected due to section 2(a)'s prohibition on immoral and offensive trademarks. After all, his brand name is FUCT.

Surprisingly though, the Court of Appeals for the Federal Circuit ruled that section 2(a) was unconstitutional as an impermissible First Amendment restriction. It held that the restriction on immoral or offensive marks was a content based restriction that could not pass strict scrutiny. And if that's not surprising enough, the opinion is filled with a fascinating discussion of trademark morality.

Below, you can read some of the highlights from the case.

Opinion Highlights

This opinion of the court does not fail to disappoint when it comes to commentary. And while you can read for yourself below how the court doesn't seem too pleased with their decision, it certainly seems to make sense.

  • "In this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed."
  • "The PTO registered the mark FCUK, but rejected the marks FUCT and F**K PROJECT as scandalous. It allowed the registration of MUTHA EFFIN BINGO, Reg. No. 4,183,272, and IF WE TOUCH IT, IT'S FN GOLDEN, Reg. No. 4,100,978, but not F ALL F'S APPAREL FOR THE F'N ANGRY, Appl. No. 78,420,315.6"
  • "We find the use of such marks in commerce discomforting, and are not eager to see a proliferation of such marks in the marketplace. There are, however, a cadre of similarly offensive images and words that have secured copyright registration by the government. There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law. No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case."

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