Iancu v. Brunetti Oral Argument; C-SPAN, April 15, 2019

April 15, 2019, C-SPAN; 

"Iancu v. Brunetti Oral Argument

The Supreme Court heard oral argument for Iancu v. Brunetti, a case concerning trademark law and the ban of “scandalous” and “immoral” trademarks. Erik Brunetti founded a streetwear brand called “FUCT” back in 1990. Since then, he’s attempted to trademark it but with no success. Under the Lanham Act, the U.S. Patent and Trade Office (USPTO) can refuse an application if it considers it to be “immoral” or “scandalous” and that’s exactly what happened here. The USPTO Trademark Trial and Appeal Board also reviewed the application and they too agreed that the mark was “scandalous” and very similar to the word “fucked.” The board also cited that “FUCT” was used on products with sexual imagery and public interpretation of it was “an unmistakable aura of negative sexual connotations.” Mr. Brunetti’s legal team argued that this is in direct violation of his first amendment rights to free speech and private expression. Furthermore, they said speech should be protected under the First Amendment even if one is in disagreement with it. This case eventually came before the U.S. Court of Appeals for the Federal Circuit. They ruled in favor of Mr. Brunetti. The federal government then filed an appeal with the Supreme Court. The justices will now decide whether the Lanham Act banning “immoral” or “scandalous” trademarks is unconstitutional."

He wants to trademark a brand name that sounds like the F-word. The Supreme Court is listening.; The Washington Post, April 13, 2019

Robert Barnes, The Washington Post; He wants to trademark a brand name that sounds like the F-word. The Supreme Court is listening.

"Brunetti is challenging a neighboring provision in the law, which prohibits the registration of “immoral” or “scandalous” trademarks. And his odds look good."

Trademark Fight Over Vulgar Term’s ‘Phonetic Twin’ Heads to Supreme Court; The New York Times, January 21, 2019

Adam Liptak, The New York Times; Trademark Fight Over Vulgar Term’s ‘Phonetic Twin’ Heads to Supreme Court

"The Supreme Court apparently thinks the question is more complicated, as it agreed this month to hear the government’s appeal. If nothing else, the court can use Mr. Brunetti’s case to sort out just what it meant to say in the 2017 decision, which ruled for an Asian-American dance-rock band called the Slants. (The decision also effectively allowed the Washington Redskins football team to register its trademarks.)

The justices were unanimous in ruling that the prohibition on disparaging trademarks violated the First Amendment. But they managed to split 4 to 4 in most of their reasoning, making it hard to analyze how the decision applies in the context of the ban on scandalous terms."

Derogatory trademarks aren’t about free speech. They’re about discrimination.; Washington Post, June 21, 2017

Robert S. Chang, Washington Post; Derogatory trademarks aren’t about free speech. They’re about discrimination.

"Unfortunately, Reyna’s hypothetical is an actuality of sorts. In Florida and other states, gun store owners have placed signs on their establishments declaring themselves to be a “Muslim Free Zone.” As the owner of one of the stores, Florida Gun Supply, said: “My goal is to make sure they don’t feel welcome here so I don’t have the need to discriminate in the first place.

Following Matal v. Tam, nothing will prevent the owner from obtaining federal registration of “Muslim Free Zone” as a trademark, accomplishing through speech what he might not be able to do through direct denial of service. For businesses not covered by Title II of the 1964 Civil Rights Act, nothing will prevent the creation and federal registration of trademarks such as “No Gays Allowed” or, for that matter, “Whites Only.”

The federal government, though, should not be required to register these trademarks. The government should not be required to participate in discrimination.

This is where we are following the Supreme Court decision. This is the mischief that will come."

Julieta Chiquillo, Dallas Morning News; 

Why the Supreme Court protects offensive trademarks but not Texas plates with Confederate flag

"When Alito struck down efforts to equate the Oregon case with the one in Texas, he highlighted three points:

First, license plates have long been used by states to convey messages. Second, license plates are usually identified with the state because they are considered a form of government ID, one that is manufactured by the state and generally designed by the state. Third, Texas "maintained direct control" of the messages in its plates.

"None of these factors are present in this case," Alito wrote in The Slants opinion."

Asian-American Rock Band Denied Trademark For ‘Disparaging’ Name; KDKA.com, April 27, 2017

Julie Grant, KDKA.com; 

Asian-American Rock Band Denied Trademark For ‘Disparaging’ Name

"The government’s position is that the trademark registration program and trademarks generally have not historically served as vehicles for expression; they are meant to identify the source. The law is set forth in the Lanham Act which states that registration can be refused if a trademark is disparaging. Dr. Rooksby believes the provision is too arbitrary and will be invalidated by the court.

According to Rooksby, “I think Simon Tam should win the case. They’ve made a compelling argument that this provision of the trademark law is unconstitutional and this is because it’s too arbitrary. How do you apply it? What is something that’s disparaging?”

While the court weighs the arguments, the band has released an EP titled “The Band Who Must Not Be Named.” A decision is expected by the end of June."