What the Fu** — Supreme Court agrees to hear Brunetti Trademark Dispute

by Dennis Crouch

Erik Brunetti’s “FUCT” line of apparel doesn’t have much appeal to my sense of style, but the clothing certainly seem to make a statement.  The USPTO refused to grant Brunetti’s application to register the mark — finding that the mark “comprises immoral * * * or scandalous matter” and thus cannot be registered under Section 2(a) of the Lanham Act.

On appeal, the Federal Circuit sided with Brunetti — holding the statute unconstitutional as contrary to the Free Speech provision of the First Amendment.  In its decision, the court followed the Supreme Court’s lead in Matal v. Tam, 137 S. Ct. 1744 (2017). In Tam, the Supreme Court addressed disparaging marks — also prohibited under Section 2(a) — finding that the prohibition on registration to be contrary to free speech rights.  The Government then petitioned the Supreme Court to review the case, and the court has now granted certiorari with the direct question:

Whether Section 1052(a)’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the Free Speech Clause of the First Amendment.

In an unusual turn of events, Brunetti did not oppose the petition, but instead agreed that the Supreme Court should weigh-in — and additionally address the following additional question:

Whether Section 1052(a)’s prohibition on the federal registration of “immoral” or “scandalous” marks is unconstitutionally vague under the First and Fifth Amendments.

In granting certiorari, the Supreme Court did not indicate whether the court is addressing both questions, or only the one proposed by the the Government.  Since Tam, the Supreme Court has changes somewhat — Justice Kennedy is gone and Justices Gorsuch and Kavanaugh are now on the court.

40 thoughts on “What the Fu** — Supreme Court agrees to hear Brunetti Trademark Dispute

  1. 3

    In other news:

    (1) Cert denied for Amgen v. Sanofi (I kind of doubt that even Amgen had all that much hope of this one being taken for cert.);

    (2) Cert denied for Wi-Fi One v. Broadcom;

    (3) The SG was invited to comment on Berkheimer (I stand by my prediction that the Court is not going to take cert on this one, although the fact that they invited comment tells against my prediction); and

    (4) Western GeCo is granted permission to file their cert petition under seal.

    1. 3.1

      The “under seal” is an interesting twist.

    2. 3.2

      I appear to be out of posts on the other thread. Greg, your position is outrageous. I am not going to dig through my Constitutional Law book to come up with cases that discuss this. You should do that. Figure out that the enumerated powers tell the Congress whether the power is for Foreign Nations or not. If it does not say Foreign Nations, then the default is for the USA.

      The “promote” clause is no more for Foreign nations than the mint coin clause.

      1. 3.2.1

        The “count” filter hits two threads.

    3. 3.3

      Frankly, Greg, this is just ridiculous. Do you really want me to get references for this position? Really?

      1. 3.3.1

        I do not want you to get references for this position because there are none to get. I suppose that this last observation is rather the last useful thing I might have to contribute to this conversation, unless and until you prove me wrong by citing some authority for your position.

        1. 3.3.1.1

          Citation: seventh grade civics class on what “Sovereignty” means.

          For ALL of the commotion this topic is generating, hitting “do not discuss” count filters on two separate threads, an amusing observation remains:

          While the facts themselves that Paul first reached into may be different than what those facts were purported to support, THAT underlying position appears to actually be strengthened (in Night Writer’s favor) by the additional observations of both Greg and Paul.

          Additionally, I have provided a number of points that show weakness (especially in regards to Greg’s desire to treat “any innovation anywhere as necessarily being equal promotion everywhere.”

          Anyone with even a remote remembrance of macro economics can tell you that localization effects are both very real and very important when it comes to the benefits of having an innovation capacity.

          So, when one places the types of Mom and Apple Pie statements of “well, who would not agree that innovation somewhere brings [some] benefits everywhere” and avoids the “weeds” of whether or not a Sovereign chooses or may choose to limit their patent system participation to any particular group of individuals; the larger point that originated all of this — the concern with a localized US innovation capacity — is a point that still has merit (and humorously, this merit is generated by those attacking Night Writer’s initial position).

          1. 3.3.1.1.1

            Actually, the Paris Convention Treaty is where the powers come to grant the patents to foreigners.

            1. 3.3.1.1.1.1

              Two brief points:

              (1) If the Constitution does not give Congress power to do something, then that power cannot be supplemented by a treaty. Congress cannot act pursuant to a treaty to exercise powers that Congress does not constitutionally possess. If, for example, the president were to negotiate and the Senate were to ratify a treaty with the Vatican making Catholicism the official religion of the U.S., the Supreme Court would not just say “oh well, there is a treaty in place.” Rather, they would say that this treaty violates a Constitutional prohibition against establishing a state church. If you believe that a treaty has enacted this policy (and, of course, a treaty has enacted this policy), then you are ipso facto conceding that the constitution affords Congress the power to do this. That is why I am hard pressed to understand your bizarre contention that the “position that the Constitution of the USA is enabling the Congress of the US to promote innovation in other countries is just strange.” Evidently even you agree that “the Constitution of the USA is enabling the Congress of the US to promote innovation in other countries,” as evidenced by your concession that the Congress (pursuant to our Paris Treaty obligations) has lawfully done so.

              (2) The U.S. was granting patents to foreigners long before the Paris Treaty. The Paris Treaty on Industrial Property was signed in 1883. But the Supreme Court adjudicated a case concerning a U.S. patent granted to a German company in 1869. Evidently, then, the U.S. law granting patents to foreigners was not a new thing that came into being with the Paris treaty.

              1. 3.3.1.1.1.1.1

                The “to promote” has to apply to the USA. That is the point.

                1. Sovereignty.

                  That is the point.

                  The US cannot grant a German patent. The US cannot grant a Chinese patent.

                  Non-US citizens have availed themselves of obtaining US patents like forever, but they do so IN the US system. A German citizen does not obtain a US patent through the German patent system.

                  Any and all comity by way of treaty is — and remains — within each Sovereign’s sovereign domain, and ANY agreement by a Sovereign to apply patent law remains patent law OF that Sovereign (it seems that even a simple concept of comity is not being grasped).

                  There simply is no “One World Order” to which the US Sovereign (or for that matter, any other Sovereign) MUST bow.

                  We are free to choose to enter treaties (within limits – Greg does get that point correct), but none of this has anything to do with the “person’s citizenship” angle that has been one huge red herring over these several threads.

                  Let’s have everyone get out of the weeds please.

                  Once the Sovereignty aspect is understood, then the driver of “Sovereign-Centric” can be appreciated.

                  We employ comity in treaties ONLY because those items in treaties that we decide to then enact into law are things we as a Sovereign have decided benefit us AS a Sovereign.

                  The nano-second that it becomes apparent that something that we agreed to in a treaty does NOT inure to the benefit of the US Sovereign**, you best be DAMM sure that we — as a Sovereign — should be thinking about breaking or otherwise withdrawing from that treaty.

                  **in the real pragmatic sense, including the evaluation of the cost of that action is included in the calculus.

                  Citizenship does — and should — mean something (and in fact, one of the greatest detriments to a strong US patent system has been the actions of juristic persons who simply do not have the same penalities of “bad citizenship” that real persons have.

                  In this modern day, we very much have a Corporatacracy that has gone unchecked for too long and has gained too much “voice” (can you say Citizens United?).

                  The great US experiment centered on individualism.

                  This bedrock foundation point needs to be returned to.

                  This does not mean xenophobia, nor does it mean that we do not encourage others to partake in the US patent system. It does mean that we make the US patent strong and rebuff efforts at internalization that do not benefit a strong US innovation base.

                  While innovation anywhere brings some benefit everywhere, it is a critical mistake to think as Greg does that innovation anywhere brings the same level of benefit to everyone. This ignores both reality and the fundamental nature of Sovereignty.

                  Large Corp multinationals all too easily do NOT have the best interests of US as a Sovereign as their guiding light.

                2. What exactly does it mean to promote progress in (but only in) the US? Progress in (e.g.) Germany is progress in the U.S. if the people of this nation partake of the benefits of the progress (as when a German inventor sells clothes in the US colored with the inventor’s new dye, or a German pharmaceutical company markets its newly invented drug to US patients).

                3. And yet again, Greg displays his canard.

                  One of the problems for Greg is that as a Pharma guy, he has to be able to peddle that end user consumption has to be equated with “promotion.”

                  The reality of the matter is far more complex and oft nuanced.

                  Is there some benefits to having things TO consume?

                  Absolutely.

                  But “some benefits” is not the same thing — not the same concept as promotion.

                  Harken back to the nature of the patent right being a negative right. The Quid Pro Quo of the patent bargain does NOT include the positive action of producing something that would then be consumed.

                  Returning to Pharma, one can see (if one is willing to critically think about this) instances in which the “some good” of consumption are actually outweighed by other factors (for obvious example, a highly disproportionate “sharing” of costs of development carried by US Citizens for Pharma development through the geographic pricing schemes).

                  When one adds into that the attempts to control natural secondary markets — for items that Big Pharma itself puts into the stream of commerce — and then remember that multinationals do NOT have the same sense of citizenship (and care not at all about the concept of single nation sovereignty, except as an impediment to maximized profits), one sees why Greg pushes so hard for the “some good” is good enough.

                  Just as with treaties with other Sovereigns, the US Sovereign should immediately rethink its own (internal), Sovereign-centric system when a balance of most all the factors does not tip in favor of the sovereign.

                  The case with Big Pharma and the disproportionate medical costs brings about a call for the US Sovereign to do just that.

                  That is, if we can get our Congress critters to be uncaptured by the “voice$” of lobbying dollars (agains, think Citizens United).

                  For those wanting to dismiss this, there is ready and somewhat recent history of capture in the days leading to the SnL debacle.

                  Corporatacracy is a very real notion — with very real (and negative) implications. Turning a blind eye to this is inviting the fox to watch the henhouse. The fox will be quick to point out that at least the hen house is being watched, and if devious enough will not empty the henhouse, but instead will preserve enough “good” to ensure its stream of good. But that would not be the model (not even close to the best model) of actual promotion.

                  The US Sovereign great experiment broke away from the Europe mercantile model for an individual model. Corporatacracy would prefer the more guild-like (and weaker) patent systems. Sure, “some” good may still come out, but the overall picture would still be one of “capture” and through that capture, the fox would more easily ensure that any threatening innovation would have a tougher road to hoe.

                  In a very real sense, the “good” would be the enemy of the “great” and the better sense of promotion would be stifled with the lesser model.

                4. …and I would add that all of this goes hand in hand with another of Night Writer’s voiced concerns: the influence of Google and Big Tech with their propaganda machine in denigrating both the patent system and a certain form of innovation.

                  One need not pick on Pharma alone, as the mercantile effects of Corporatacracy extend into more art fields than that (and yes, 6, this does extend to the shadow worlds of banking – but in a different sense than the one that you recently indicated).

                5. I am reminded of Bread and Circuses.

                  Give the masses things to consume (bread) and distract them with bi-partisan politics (the Circus from BOTH sides of the aisle), and the ongoing power grab can stay out of the focus.

                  This too plays into the Efficient Infringer gambits and the “Tr011” narrative, by demonizing with FUD that supplies of bread are “threatened” by patents (patent hold-up, taking away the “stick” aspect of “carrot and stick” and necessity being the mother of invention).

                6. I think the key is that in looking at whether a law such as 101 is Constitutional, the law would have “to promote” in the USA to be Constitutional and not in Germany.

                  Also, I think Greg you should read the case I cited below. I think that I could find other cases that are more directly on point, but this one at least discusses the enumerated power of Congress and the significance of whether they are domestic or Foreign powers.

                  I suspect that granting a German company a US patent, which appears to be what you cited (although it was not clear to me where the invention was made) is one of those gray areas that was probably grandfathered in. It would take a bit of research to figure out how exactly that is justified, but it is really a kind of treaty of you honor our inventions and we will honor your inventions.

                7. Night Writer,

                  You are in the weeds.

                  Not as deep into the weeds as others, but in the Weeds still.

                  Read my posts. That should bring you back onto the path.

                8. Night Writer,

                  That is why I suggested that you read my posts already provided.

                  This very much is an instance in which the purpose of your earlier missives NOT ONLY remain on point (regardless of the questioning of the data by Paul and Greg), BUT ALSO, because of items raised by Paul and Greg, actually may be worse than merely (or directly) depending on the data as you would have it.

                  It’s a red herring to get caught up in a discussion of the nationality of anyone choosing to partake in the US Sovereign run system.

                  The underlying truth is – and remains – that Sovereigns DO compete for intellectual capitol, and that Sovereign-centric laws (and patent law very much IS a Sovereign-centric set of laws) ARE MEANT TO BE geared to the benefit of the Sovereign.

                  Greg’s notion further must conflate “some benefit” anywhere with equal benefit everywhere. AS I provided but one instance why (consumerism) and noted that the nature of the patent right itself does NOT require any actual consumer item to be made in relation to the patent right, the “benefit” (even in some places) that Greg uses as his basis for “same benefit everywhere” is simply not a part of the patent Quid Pro Quo.

                  IF you allow yourself to get caught up in arguing points that are in the weeds, you will not be able to point out either 1) where Greg himself is entirely in the weeds, or 2) that your larger point is actually being made by those attempting to diminish that larger point.

        2. 3.3.1.2

          This is ridiculous. Read this case and I am sure it can be a launch point for you to realize that the enumerated powers of Congress are for internal legislation and not external or Foreign Nations.

          link to scholar.google.com

          Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited.

          It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an
          320
          *320 exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

        3. 3.3.1.3

          Please the reference I did get.

  2. 2

    Given that the Tam decision made no sense whatsoever, it’s difficult to determine where the Supremes will take this one. Still waiting for the “cogent” explanation as to how freedom of expression is promoted by the government handing out perpetual monopoly rights on expression.

    Regardless, it’s definitely great news for N@ zi’s, white supremacists and other prime examples of human s c u m whose awesome views are treated oh-so-unfairly here in the USA.

    1. 2.1

      From a quick review, it seems like a lot of the rationale may be premised on the idea that “the Government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.’ ” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205, 214 (2013) (some internal quotation marks omitted).

      It is worth noting that there is a suggestion in Agency for Int’l Development that the dissent (by Scalia) would have cabined this proposition to “only be true when the condition is not relevant to the objectives of the program (although it has its doubts about that), or when the condition is actually coercive, in the sense of an offer that cannot be refused.” Id.

      1. 2.1.1

        There is no infringement of anybody’s right to “speech” when a trademark is denied because it’s deemed to be immoral or scandalous. The purpose of granting “trademark rights” is to protect consumers from confusion. The rational basis for limiting trademarks to non-immoral or non-scandalous marks is that immoral and scandalous marks are deemed unnecessary and possibly harmful to the functioning of a decent society. Come up with a different trademark is all that is being asked. The government isn’t telling you that you can’t wear a swastika or that you can’t otherwise be a blight upon society if that’s what you wish to be. But the government can refuse to register your @ h 0le trademark because there is no point in doing so except to promote @ h 0les, which nobody except a tiny tiny handful @ h0l es thinks is a good idea.

        1. 2.1.1.1

          With apologies for any confusion, to clarify, my comment was with respect to Tam and was based on a quick review of that case. I have not looked at this case at all.

        2. 2.1.1.2

          “of a decent society”

          One day MM thinks we have a decent society (and a gubmit supporting there being such a thing) the next day all of society is ebil white cis hetero christian capitalist patriarchal EBIL!

          MM doesn’t understand his own dialectic.

          But lets break it down shall we?

          Basically his dialectic is Whitey is Ebil (insert support here), no wait, Whitey is Ebil (insert support here), no wait, Whitey is Ebil (insert support here), no wait, Whitey is Ebil (insert support here) etc. etc.

          It’s the same dialectic that plays in his head all day long. For infinite.

          Also insert gay trans nudist etc. pride dildo saxtoy parade gif here.

          The very most of decent societies! Why everyone is in the synagogue, mosque or church! Gambling, drinking, smoking, etc. hardly happen at all! No demeaning songs are written or sung! The list goes on ad infinitum and MM is still pretending that there is some sort of “muh decency” about current society, and moreso that it is being promoted by the gubmit. That ended in the 60’s re re. Especially for everyone outside your pampered little bubble.

          May as well let trademarks reflect the new society your bruhs wanted back in the day. If you want to make society “decent” then you’re going to need to abandon your “muh progress to utopia”.

          1. 2.1.1.2.1

            See post 1.1.1.1.

  3. 1

    I wonder what cogent legal position our resident First Amendment expert Malcolm has on this issue.

    1. 1.1

      …and there it is:

      Given that the Tam decision made no sense whatsoever,

      1. 1.1.1

        If only I had remembered to rant about how the “scoreboard is broken” I could have doubled my cogency score.

        Oh well.

        Anyway, “anon”, since I’m sure you can relate to the tragic discrimination experienced by those freedom-loving N@ zi’s and white supremacists, perhaps you can tell everyone how this case will play out at the Supreme Court.

        You’re a very serious person!

        1. 1.1.1.1

          Wow do you miss the point (that point being that YOUR control of what is “ok” is OK as long as it is your control).

          You quite miss that you want to enforce a type of control based purely on your own feelings (and feel that this is perfectly fine, because, well, “your feelings.”

          It’s amazing really how you can continue to not see the bigger picture of legal issues because how blinded you get by your own feelings.

          You mess up in your understanding of patent law because of this.

          You mess up in your understanding of Trademark law because of this.

          You mess up in your understanding of First Amendment Law because of this.

          For all of your (mindless) crowing about wanting others to grow up (or that they are “so serious”), you are the one that needs to grow up the most.

          You have as much control over your emotions as Trump.

          Which is rather a fitting analogy, given that you are the Trump of these boards.

          1. 1.1.1.1.1

            YOUR control of what is “ok” is OK as long as it is your control

            We the people can decide whether we want to establish a system for registering trademarks for the purpose of avoiding consumer confusion. Given that purpose, we the people can rationally decide to limit registration to trademarks which meet rationally determined criteria. Such criteria may reasonable include “not immoral”, “not scandalous” and “not disparaging.”

            YOUR control of what is “ok” is OK as long as it is your control

            Again, you are free to behave in any way you like. I’m not telling you that you can’t desecrate a flag. I’m not telling where to put your w e e w e e, or under what circ um stances. I’m not telling you what you naughty words you can use. Knock yourself out! Rah rah! But, yes, I am telling you what kind of trademarks the government should register because trademarks aren’t speech. We the people could likewise require every item with a registered trademark to include the words “The morality and lack of scandal in this trademark was analyzed and approved by the US government” somewhere on the item or its packaging because … it’s accurate. Don’t like that? Then don’t register your trademark.

            [shrugs]

            I mean if “free expression” means as much to you as you pretend then you must be spending all your other waking time when you’re not here railing against the religious inanity that your li za rd minded dominionist grand@ddies soiled our currency with.

            1. 1.1.1.1.1.1

              We the people can decide…

              We have.

              But it’s just not the Ends-driven decision that you would want to have.

              That you (continue) to fail to see this — while not shocking — is just sad.

              1. 1.1.1.1.1.1.1

                “We the people can decide…”
                We have.

                Fascinating. You must be a different “anon” from the one here who constantly complains that the Supreme Court is a “broken scoreboard.” Like, you smell just as bad, but there is some different funk in the mix.

                1. Brush aside the mindless ad hominem, and you has offered…

                  …nothing.

                  This IS the same Malcolm.

                  How sad.

            2. 1.1.1.1.1.2

              “If [__] means so much to you….”

              You are so Trump, you probably do not even realize just how Trump you are.

              Very sad.

              1. 1.1.1.1.1.2.1

                You are so Trump

                *yawn*

                1. Yawn…?

                  Given your other posts, I thought that you would have been amused instead at the uncanny parrallels regarding the lack of emotional control between you and the President. Maybe you wanted more parrallels? How about the parrallels with how you both spin facts in order to advance (and apparently, to convince yourselves) of the Ends that you want to reach are “ok” to reach by whatever means?

                  If you put blindfolds around the Ends, your methodologies are exceedingly parrallel.

                  You both engage in mind-numbingly empty rhetoric and mis-aimed ad hominem.

                  You are so wrapped up in yourself that you fail to see this – which is another parrallel in that Trump is largely blind to his own foibles.

                  You are both legends in your own (respective) “minds” even as you would hold each other out as some type of “devil.”

                  It’s hularious that not only do you not see this, but that you refuse to see it even when it is brought to your attention – as if you denying it alone will make it go away. As if reality bends to your own private “force of will” (yet another parallel).

                  Truly remarkably sad.

          2. 1.1.1.1.2

            you are the one that needs to grow up the most.

            LOL

            Billy, you never cease to amuse.

            1. 1.1.1.1.2.1

              I would not call what you do strictly amusing.

              It’s more like you are egregiously sad.

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