We are all FUCT

fuctProductIn re Bruneti (Fed. Cir. 2017)

The Federal Circuit has ruled that trademark law’s bar against registering immoral or scandalous marks is an unconstitutional restriction of free speech.  Thus, on appeal the court has reversed the TTAB’s holding that Bruneti’s mark FUCT is unregistrable. (FUCT Clothing Store).

This decision follows the Supreme Court’s recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017).  In that case, the court held that § 2(a)’s bar on the registration of disparaging marks involved a governmental viewpoint discrimination in violation of Free Speech principles.

Here, the Federal based its decision on content-based discrimination (rather than viewpoint based) which is also reviewed for strict scrutiny.  In reaching its decision, the Federal Circuit rejected two particular arguments, holding:

  1.  Trademark Registration is Not a Government Subsidy Program: If it were a subsidy, then the government could place conditions on the program without violating free speech principles (so long as those are not unconditional conditions)
  2. Trademark Registration is more than commercial speech because it does “more than propose a commercial transaction” and often involve expressive conduct.  If it were pure commercial speech, then restrictions would be reviewed under a looser standard.  However, here the court holds that the immoral or scandalous mark provision “is unconstitutional even if treated as a regulation of purely commercial speech.”

The majority opinion here was written by Judge Moore and joined by Judge Stoll.  Judge Dyk wrote a concurring opinion — arguing that some aspects of Section 2(a) could be saved by a narrow definition:

One such fairly possible reading is available to us here by limiting the clause’s reach to obscene marks, which are not protected by the First Amendment.

Dyk proposes that the PTO should follow the approach of criminal law that – by statute criminalizes the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” material.   Rather than finding the entire statute invalid, courts have limited the statute to only apply to obscene material.  That same approach could be used here.

The majority responded the Dyk’s suggestion by arguing that such a re-write of the statute here would be an improper exercise of legislative powers – reserved for Congress. “It is not reasonable to construe the words immoral and scandalous as confined to obscene material.”

6 thoughts on “We are all FUCT

  1. F ckin’ best burger you ever put in your f ckin mouth (TM).

    So awesome.

    1. Maybe you need some help with understanding the law here, Malcolm.

      See any of my previous posts regarding the Tam case.

      “So awesome” indeed – just not in line with your feelings (as opposed to, say, being in line with the law).

  2. Good exam question.

  3. Would his brand extend to a proprietary brand of Duct Tape?
    There might be plenty of business away from just clothing. Be there or be square.

  4. even if treated as a regulation of purely commercial speech.”

    Some of us ( ) noted this in the Slants case…

  5. At least only the owner can use the mark… rather the multitude of copy cats which otherwise would have flooded the market place…

    so we’re only “all FUCT” a little bit, versus way too much.

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