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Supreme Court Argument in the “Scandalous Trademarks” Case Wasn’t So Funny

Summary:
FUCT may be fuct. Two years ago in the Tam case, the Supreme Court struck down the Lanham Act’s “disparaging trademarks” provision, but the justices seem less likely to erase the “scandalous trademarks” prohibition now – at least as far as one can tell from this morning’s argument in Iancu v. Brunetti. That’s because racial slurs and other offensive phrases necessarily have a viewpoint – on the basis of which the First Amendment doesn’t allow the government to discriminate – but swear words can be just a “mode of expression.” At the same time, the “scandalous” mark restriction is so broad that the government is asking the Court to either accept its benevolent assurances or narrow the statute. There were echoes of the government’s assurances not to prosecute certain kinds of speech

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FUCT may be fuct. Two years ago in the Tam case, the Supreme Court struck down the Lanham Act’s “disparaging trademarks” provision, but the justices seem less likely to erase the “scandalous trademarks” prohibition now – at least as far as one can tell from this morning’s argument in Iancu v. Brunetti.

That’s because racial slurs and other offensive phrases necessarily have a viewpoint – on the basis of which the First Amendment doesn’t allow the government to discriminate – but swear words can be just a “mode of expression.” At the same time, the “scandalous” mark restriction is so broad that the government is asking the Court to either accept its benevolent assurances or narrow the statute. There were echoes of the government’s assurances not to prosecute certain kinds of speech in Citizens United there, and indeed the same deputy solicitor general, Malcolm Stewart, initially argued that case – leading to the Court’s setting it for re-argument and blowing up the relevant statute.

The most telling series of questions involved the regulation of bus advertising, and that example should indeed decide the case: you should be able to register trademarks that come short of obscenity (which is generally pictures or sentences, rather than single words), but both registered and unregistered trademarks are still properly subject to time, place, and manner restrictions. And that includes “limited public forums” like the sides of municipal buses, public park benches, and the like.

One other note: none of George Carlin’s seven dirty words were used during the argument (though the late comedian’s formulation was invoked several times). Stewart described FUCT’s “scandalous” homonym as the “past participle of paradigmatic profanity,” while Chief Justice John Roberts at one point spelled out “F-U-C-K.” 

We’ll know by the end of June whether edgy marks are up Schitt’s Creek.

I previously wrote about the background of Brunetti – in which Cato filed its latest “funny” (more “vulgar”) brief.

UPDATE: After reviewing the oral argument transcript (and getting emails from other Court watchers), I realize that I both misremembered and incorrectly wrote down Chief Justice Roberts’s question about the potential registrability of the profane homonym to FUCT. He asks (page 58): “I take it that the – a correct spelling of the vulgar word at the heart of the case, that can’t be trademarked, right?” (For the record, Mr. Brunetti’s counsel replied that it could be, under certain circumstances.) This is an amazing error; apparently my mind interpolated the word without it having to be explicitly spoken!

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