In re Brunetti - 877 F.3d 1330 (Fed. Cir. 2017)

Rule:

The bar in § 2(a) (15 U.S.C.S. § 1052(a)) of the Lanham Act against immoral or scandalous marks is unconstitutional because it violates the First Amendment.

Facts:

Erik Brunetti was the owner of the clothing brand “fuct,” which he founded in 1990. In 2011, two individuals filed an intent-to-use application for the mark FUCT for various items of apparel. The original applicants assigned the application to Mr. Brunetti, who amended it to allege use of the mark. The examining attorney refused to register the mark under § 2(a) of the Lanham Act, finding it comprised immoral or scandalous matter. The examining attorney reasoned that FUCT was the past tense of the verb “***,” a vulgar word, and was therefore scandalous and unregistrable. Brunetti appealed, arguing that substantial evidence did not support the Board’s finding that the mark FUCT was vulgar under § 2(a) of the Lanham Act.

Issue:

1. Was the mark FUCT vulgar and scandalous?
2. Could the Board bar the registration of vulgar and scandalous mark?

Answer:

1) Yes. 2) No.

Conclusion:

The Court held that substantial evidence supported the Board's finding the mark was vulgar. According to the Court, dictionaries in the record characterized the word “fuck” as “taboo,” and an “extremely offensive expression.” There was also substantial evidence supporting the Board’s finding that “fuct” was a phonetic twin of “fucked,” the past tense of the word ‘fuck.” However, the Court held that Section 2(a) of the Act's bar on immoral or scandalous marks was unconstitutional under the First Amendment. According to the Court, the bar was an unconstitutional content-based restriction on speech and government registration of trademarks did not create a limited public forum. Section 2(a) of the Act regulated the expressive components of speech, not the commercial components of speech, and as such it should be subject to strict scrutiny; the Government has offered no substantial government interest for policing offensive speech in the context of a registration program. Accordingly, the Court reversed the Board’s holding that Brunetti’s mark was unregistrable under § 2(a).