Is the Limiting of Scandalous Marks a Viewpoint Neutral Government Activity?

by Dennis Crouch

In the FUCT case (In re Brunetti), the Federal Circuit mooted the Lanham Act’s prohibition against registering immoral or scandalous marks — holding the limitation to be an unconstitutional restriction of free speech and reversing the TTAB holding that Bruneti’s “FUCT” mark is unregistrable.  The FUCT case follows the Supreme Court’s 2017 SLANTS decision (Matal v. Tam) which similarly voided the prohibition on registering disparaging marks. (Erik Brunetti is shown on the right.)

 

The US Government (USPTO/DOJ) has petitioned for en banc review of the decision – arguing that the immoral/scandalous prohibition should stand.  Notably, the US argues that limiting registration of disparaging marks at issue in Tam was more suspect because it was directed toward a particular viewpoint (e.g., disparagement of people …). On the other hand, the parallel prohibition on registering scandalous marks is viewpoint neutral.  Despite that difference, the Federal Circuit applied a strict scrutiny test.  The US argues that strict scrutiny should not apply here but rather that the Federal Circuit should develop a separate and new test for “the constitutionality of viewpoint-neutral limitations on registrability.”

Brunetti has responded. The brief is certainly not the best ever filed, but it raises important points:

  • Scandalous Marks: The Government incorrectly asserts that the Clause only prohibits registration of marks that contain “profanity, excretory or sexual” matter — despite the plain language of the text.
  • Using “Dirty” Words as a Statement: “[T]he Government chooses to ignore the Supreme Court’s decision that profanity is viewpoint.” See Cohen v. California, 403 U.S. 15 (1971).
  • As applied:  “It is obvious that many marks refused as scandalous . . .  are expressing viewpoint. Specifically in this case, the [TTAB] affirmed the refusal of Brunetti’s  mark because of his viewpoint. The Board asserted that Brunetti “objectifies women and offers degrading examples of extreme misogyny,” “anti-social imagery,” is “lacking in taste,” and contains a theme “of extreme nihilism—displaying an unending succession of anti-social imagery of executions, despair, violent and bloody scenes including dismemberment, hellacious or apocalyptic events, and dozens of examples of other imagery lacking in taste.” While the Board incorrectly characterized Brunetti’s views, it is clear that his views were intertwined with the Board’ decision as to whether his mark is scandalous.
  • Policy Parade: What if the Government Could Restrict Scandalous/Immoral Statements: “What is really frightening is what state and local governments could do if the Scandalous Clause were constitutional. For example, a city could deny a license if it did not like the name of the restaurant (Sambo’s Restaurants, Inc. v. City of Ann Arbor, 663 F. 2d 686 (6th Cir. 1981)), the name of the corporation (Kalman v. Cortes, 723 F.Supp.2d 766 (ED. Pa. 2010) (involving “I Choose Hell Productions LLC”), or a label (Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998)). . . . If the Scandalous Clause were constitutional then a city or state could effectively prevent disfavored organizations from doing business by denying business licenses, sales tax permits, etc., on the grounds that such organizations or their names are scandalous. Both the NRA and Planned Parenthood could be effectively prevented from operating in different parts of this country depending on the political views of the locality.  . . .

Read the briefs:

We are all FUCT

 

 

 

35 thoughts on “Is the Limiting of Scandalous Marks a Viewpoint Neutral Government Activity?

  1. 7

    My favorite line from Brunetti’s brief: “It would be extremely rewarding professionally for counsel to argue a case en banc before this Court. However, there is no good cause for rehearing.”

  2. 6

    Greg: Some legal requirements are simply going to be tough calls to make, but that is no reason for Congress not to include such prohibitions if Congress so chooses.

    No, it has to perfectly convincing and clear to the liz@rdbr@ins or else the Republic will crumble and Obama will come and take your grandfather’s musket away.

    1. 6.1

  3. 5

    a city could deny a license if it did not like the name of the restaurant

    So?

    1. 5.1

  4. 4

    We’re now a leftist culture, not a christian one so I don’t even think that this mark is “scandalous”. Fight the power! Fight the white cis hetero christianish capitalist patriarchy! If nothing is scandalous then the rule against scandalous marks is without power anyway.

    1. 4.1

      Excuse us for wanting to live in a country where the Christian Taliban doesn’t get to legislate their morality on the rest of society.

      1. 4.1.1

        ?

        I think that 6’s post is an exact opposite warning about which ideological “Taliban” is the one that needs to be watched out for.

        The Left (perhaps more so than any “Christian” version) has their own “Taliban” that seeks to legislate THEIR morality on the rest of society.

        1. 4.1.1.1

          No, 6’s post is exactly about an ideological “Taliban” that wants everyone in the US to abide their moral code.

        2. 4.1.1.2

          Anon is correct that I have posted many times about the left trying to impose their newschool morality, and indeed they do wish to.

          But my post above was a mish mash of sarcastic pointing out of reality and the inevitable consequences thereof. We are a leftist culture now, and with that occurring barely anything is “scandalous” unless it offends a protected group (everyone other than white cis hetero christian capitalist able patriarchial people etc.). And that restriction on trademarks was removed with Tam. Saying mere “f u c t” isn’t scandalous at all in the current society and so is ineligible for restriction in trademark law. There are super young children cursing up a storm all over youtube etc. etc. all that stuff is spread all over. Only “evil” traditionalists even try to stop such. And they’re evil in our culture anyway so what they want doesn’t matter.

        3. 4.1.1.3

          link to nypost.com

          New morality related. If you mess up, even legit on accident, you’re banished!

          Couldn’t have happened to a finer leftist I’m sure.

          1. 4.1.1.3.1

            He said he intended to say “people of color” instead of “colored people” in comments during a Democratic Party meeting in Jacksonville, Fla., on Jan. 22.

            Because one is “hurtful” and one is not…

            1. 4.1.1.3.1.1

              Very much so!

              1. 4.1.1.3.1.1.1

                Only to one that is looking to having their feelings hurt (and celebrating some type of “Muh Victim” mindset).

                This is W A Y beyond any type of “eggshell” condition.

          2. 4.1.1.3.2

            As the exchange in Blazing Saddles goes,

            Bart: Good morning, ma’am. And isn’t it a lovely morning?

            Old Lady: Up yours, n.i.g.g.e.r.

            Can’t put that in a movie today, even though it was written by Richard Pryor. And I may get banned from this forum for posting it, even though there’s nothing inane – or offensive – about it (unlike the endless drivel from Mr. “Mooney”).

      2. 4.1.2

        “Excuse us for wanting to live in a country where the Christian Taliban doesn’t get to legislate their morality on the rest of society.”

        Like I said, fight the power comrade! #diversity #leftism #socialism #newmorality

  5. 3

    The day the the courts can establish a brightline test on what is objectively immoral/scandalous that examiners can apply with 100% consistency is the day that the courts should allow trademarks to be rejected for being immoral/scandalous.

    1. 3.1

      Careful what you wish for…
      a State with enough will, determination, and power can ensure the existence of such a bright line test and an army of such Examiners duly (indoc) traine (ate) d, to achieve the necessary conditions for the consistency of decisions you speak of.

    2. 3.2

      That seems a bit tough. I am dubious that “immoral or scandalous” is a constitutionally supportable prohibition in view of Tam, but it seems clear enough that “obscene” is. If the court strikes down the “immoral or scandalous” provision and Congress responds by replacing the lost prohibition with “obscene,” that will be just as hard a call for the examiners to make objectively as “immoral or scandalous.” Some legal requirements are simply going to be tough calls to make, but that is no reason for Congress not to include such prohibitions if Congress so chooses.

      1. 3.2.1

        I don’t mind tough calls per se, I just want uniformity. Maybe we should have trademarks specially examined for obscenity by 3 examiners looking just at that issue. Without discussing the application or knowing the actions of the other 2, they make a determination and majority vote rules.

        1. 3.2.1.1

          Such desire for “uniformity” and especially in light of “majority vote rules” is why we have the First Amendment in the first place.

          Maybe the Squirrel should spend time looking for nuts in other locations…

    3. 3.3

      “The day the the courts can establish a brightline test on what is objectively immoral/scandalous that examiners can apply with 100% consistency is the day that the courts should allow trademarks to be rejected for being immoral/scandalous.”

      YEAH LEFTIST MORAL RELATIVISM SHOULD RULE!

      1. 3.3.1

        It
        already

        does.

        1. 3.3.1.1

          Absolutely.

          That is, until that relativism goes against what the Left wants….

          1. 3.3.1.1.1

            Isn’t that the way it is with both parties? The “right” is for state’s rights…until they’re not. They both talk the talk, but neither walks the walk.

            1. 3.3.1.1.1.1

              I will agree with you to a (substantial) point: politics as usual from either side of the political aisle smacks of C R P.

            2. 3.3.1.1.1.2

              “The “right” is for state’s rights…until they’re not.”

              The right as a whole overwhelmingly is for state’s rights, their federal gubmit leaders tend not to be though (although they will make utternances to that effect occasionally). Remember, those select individuals have certain responsibilities and have to uphold certain things and certain appearances to maintain their position and legitimacy.

              1. 3.3.1.1.1.2.1

                …so much spin – I’m dizzy…

    4. 3.4

      The day the the courts can establish a brightline test on what is objectively immoral/scandalous that examiners can apply with 100% consistency

      Gosh, that seems a tad extreme don’t you think?

      We regularly execute people or let murderers go free in this country using tests that fall well below the mark of “100% consistency”.

      1. 3.4.1

        I am against the death penalty for that reason. Even though I do not like the idea of state sponsored murder, I may be open to the idea that is is justifiable every once and a while. HOWEVER, my support for even that would rest on being able to consistently and equitably apply the death penalty… which we have shown over and over and over and over that we cannot. Heck, Georgia just executed a man even knowning that there was substantial evidence that he was innocent.

  6. 2

    The government is contradicting itself.

    Any speech which is capable of rationally being characterized as “immoral/scandalous” IS speech which contains or evokes a viewpoint, otherwise it would be impossible for it to be immoral/scandalous as only the viewpoint (subjective) content as such (in the speech) can be immoral/scandalous.

    Speech which is actually viewpoint neutral, such as descriptions of self-evident metaphysical fact, cannot ever be, “immoral/scandalous”. To the extent speech includes only factual (objective) content it simply cant be immoral/scandalous.

    Otherwise what would preventing the State from baldly asserting:

    “X is “really” and “objectively” immoral/scandalous and is viewpoint-neutral, the people who disagree with us are simply wrong.”

    1. 2.1

  7. 1

    The Federal Circuit argues that strict scrutiny should not apply here but rather that the Federal Circuit should develop…

    You mean that the U.S. Government argues that the CAFC should develop a new test, no?

    1. 1.1

      With all the splits in the Federal Circuit …

      1. 1.1.1

        Ha! Good point. :)

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