Iancu v. Brunetti

March 25, 2019 • Legal Briefs

“Fuct” is a clothing brand with, shall we say, a colorful name. It doesn’t take much imagination to figure out what they’re going for, and of course those who brazenly wear the clothing are fully aware of the signal it sends. Nevertheless, the U.S. Patent and Trademark Office (PTO) has decided that the American public’s fragile sensibilities should be protected from this brand, at least in some way, by denying federal trademark registration on the grounds that the brand name is “scandalous.” The PTO also has fainting couches on hand for those who need further assistance.

Here we go again. Remember “the Slants,” the Asian‐​American rock band who were denied a trademark based on their band name being “disparaging”? Simon Tam, the group’s lead singer, brought his case to the Supreme Court in 2017 and had the anti‐​disparaging law struck down unanimously. (That also resolved the PTO’s fight with the Washington Redskins.) In Matal v. Tam, Cato and a basket of deplorable people and organizations, including political satirist P.J. O’Rourke and former ACLU president Nadine Strossen, filed a brief supporting the Slants and arguing that disparaging speech serves a valuable purpose, especially in rock music. Where would the world be without disparagingly named bands like N.W.A. or the Queers? Most importantly, the government can’t be trusted to decide what’s a slur.

Well, we’ve gotten the band back together for this case, so to speak—including especially former Cato legal associate Tommy Berry, who will soon be taking his legal‐​satire skills to clerk on the Fifth Circuit for the same judge Ilya clerked for 15 years ago, the incomparable E. Grady Jolly. We’re once again telling the Court that scandalous speech is valuable to society and that there’s no way, consistent with the First Amendment, for a government office (the Ministry of Nice Talk?) to be trusted to decide what’s “scandalous.”

And we wouldn’t want them to. Vulgar and scandalous language helps us express ourselves better. The PTO goes overboard in communing with the spirit of William Bowdler, eponymous Bowdlerizer of Shakespeare, who sought to cleanse the Bard of all vulgarities. The trademark examiners err in thinking that ol’ Bill wouldn’t object to “Out, damned spot!” being transmogrified into “Out, crimson spot!”? It says basically the same thing, after all. Ah, but even if a rose by another name smells as sweet, it doesn’t have the same visceral effect. And those of us who are new parents know that the bedtime bestseller “Go the Fuck to Sleep” wouldn’t be quite as memorable if you replaced the key word with “frig.”

Although the government isn’t stopping Fuct from using its name—it’s only declining to register the trademark, which brings real benefits—there’s something extremely distasteful and, well, scandalous about allowing federal officials to make such arbitrary classifications. So yet again a bunch of offensive people have banded together to tell the Supreme Court that the PTO’s mission of preventing “scandalous” trademarks is all fuct up.

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About the Authors
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute