The word stands for Friends You Can’t Trust, but can you trust people will read it letter by letter?
The government’s trademark officials don’t think so.
FUCT, a clothing line known as a streetwear pioneer, is at the center of a major First Amendment case under review by the U.S. Supreme Court on Monday.
The case, filed by the U.S. Patent and Trademark Office, argues a lower court incorrectly sided with the clothing company when its judges agreed a decades-old American law barring offensive trademarks violate free speech rights. A provision of the Lanham Act says a trademark shall be refused if it consists of or compromises “immoral” or “scandalous matter.”
Andrei Iancu, director of the trademark office, argues the name fits that category because the company, which also sells children’s apparel, has used its name in connection to “strong, and often explicit, sexual imagery,” which would be evidence that FUCT could be perceived as the profane word for which it is a homonym.
“By creating a practical disincentive to the use of marks that contain sexually explicit or profane material, the provision advances the government’s interest in encouraging the use of marks that are appropriate for all audiences, including children,” Iancu wrote.
Los Angeles artist Erik Brunetti, who founded the company in 1990, claims FUCT is pronounced letter by letter.
His 2011 trademark application was rejected because after the government said the word is a phonetic equivalent of a vulgar term, but a federal appeals court ultimately reversed the ruling.
The case comes two years after the court reviewed a similar argument by a band called The Slants. The group tried to trademark its name in 2011, but the trademark office denied the request on grounds that the name was disparaging to Asians. The Supreme Court unanimously sided with the band, striking down a similar clause banning names deemed disparaging.
That band’s leader, Simon Tam, filed a brief with the high court in support of Brunetti’s argument, claiming the scandalous-clause is a holdover from another age.
“The ban on registering ‘immoral’ or ‘scandalous’ trademarks is a relic of the Victorian era, when judges and other government officials were often enlisted to scrub public discourse of anything that might offend the most prudish sensibilities,” he wrote. “We recognized long ago that Americans hold extremely diverse views of what is moral and what is not, and that government officials have no business restricting non-obscene speech to enforce one view of morality over another.”
Brunetti’s attorney, John Sommer, argues that the government is selectively approving or refusing trademark requests based upon questionable viewpoints. One example is FCUK, also known as French Connection, a U.K.-based clothing retailer that is trademarked in the U.S.
The lawyer claims scandalous clause refusals show the government is preferring certain viewpoints over others.
“Polite humor is fine, raunchy humor is scandalous,” he wrote in a November brief to the court. “Raising babies is sweet, making babies is disgusting. Kissing is fine, sex is dirty. Feminism is good, misogyny is bad. The word PENIS is allowed, an outline of a penis is not.”
The office claims the scandalous-mark provision is not a restriction on speech, but a condition on “the availability of government benefits” — in this case, trademark registration. In other words, the government is not restricting speech, but it’s declining to promote it, the office argues.
The American Civil Liberties Union was one of several groups to file briefs in support of striking down the scandalous-clause.