The U.S. solicitor general's petition in a trademark dispute over the mark “FUCT.”

A divided U.S. Supreme Court on Monday said the First Amendment prohibits the U.S. government from denying intellectual property protection to “immoral” or “scandalous” trademarks, such as the name of the clothing line “FUCT” that was in the case before the justices.

Ruling in Iancu v. Brunetti, the justices said the Lanham Act, which bans registration of “immoral … or scandalous matter,” violates the free speech rights of clothing designer Erik Brunetti.

“There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment,” Justice Elena Kagan wrote for the 6-3 majority.

The court's decision followed the court's trend of ruling in favor of free speech. Just two years ago, in Matal v. Tam, the court ruled that disparaging marks could not be denied registration under the Lanham Act.

Chief Justice John Roberts Jr. dissented in part, asserting that “standing alone, the term 'scandalous' need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expression—marks that are obscene, vulgar, or profane.”

Justice Stephen Breyer joined Roberts and also joined a partial dissent by Justice Sonia Sotomayor.

Sotomayor wrote, “The court's decision today will beget unfortunate results. … The government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.”

The Brunetti case drew many briefs in which words that were even more explicit than FUCT were mentioned, but the words were avoided during oral argument.

To prove the inconsistent handling of similar trademarks, Brunetti's counsel of record John Sommer listed 34 words that might sound scandalous. Words like FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? have been granted trademarks.

But in his brief, Sommer dropped an unusual footnote that reassured the justices they wouldn't have to hear the words he wrote about. “It is not expected that it will be necessary to refer to vulgar terms during argument,” Sommer wrote. “If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed.”

During oral argument April 15, Deputy Solicitor General Malcolm Stewart, who was defending the constitutionality of rejecting Brunetti's trademark, found a creative way of describing the word without saying it. “This mark,” Stewart said to the justices, “would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language.”

Roberts who has two teenage children old enough to have heard if not spoken expletives, sympathized with the plight of “parents who are trying to teach their children not to use those kinds of words” who might see people wearing FUCT clothing while walking with their children in a shopping mall.

 

The court's ruling is posted below:

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Read more:

Justices and Lawyers Sidestep Profanity in 'Scandalous' Trademark Case

Supreme Court to Review Patent Office Ban on Vulgar Trademarks

In Quoting Profanity, Some Judges Give a F#%&. Others Don't

 

Marcia Coyle contributed reporting from Washington.