Appeals Court OKs F-Bombs For Federal Trademark Protection

from the at-long-last,-adults-being-treated-like-adults dept

The Supreme Court’s decision in The Slants’ trademark case is already beginning to pay off for trademark seekers whose applications were determined to be a bit too racy for the Trademark Office’s (subjective) taste. Section 1052(a) of the US Code used to forbid the registration of trademarks that “disparaged” other persons or groups or anything the USPTO found to be “immoral or scandalous.”

That’s all gone now, thanks to the Supreme Court, which found this restriction to registrations unconstitutional. The Supreme Court struck down the language limiting “disparaging” trademark registrations. The Federal Circuit Court of Appeals has just struck down the remaining limiting language (“immoral or scandalous”), allowing clothing brand FUCT to finally secure federal trademark protection.

Marc Randazza breaks down the entire ruling at Popehat. Here are some of the highlights of the decision [PDF]:

The Brunetti court [rejected] the government’s argument that the “immoral or scandalous” prohibition of Section 2(a) was aimed at commercial speech. The primary test for determining whether a mark is “immoral or scandalous” is if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out for condemnation.” In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012). The court noted that this restriction is aimed solely at the expressive content of trademarks, rather than their commercial source-identifying function, and necessarily involves moral value judgments. (Decision at 27.) The court could have stopped after this determination, since the government agreed that the “immoral or scandalous” portion of Section 2(a) could not survive strict scrutiny, but it went on to find that the restriction could not survive even intermediate scrutiny.

The decision takes even more pointed shots are the government’s unavailing arguments later in the ruling.

The government’s interest in protecting the public from profane and scandalous marks is not akin to the government’s interest in protecting children and other unsuspecting listeners from a barrage of swear words over the radio in Pacifica. A trademark is not foisted upon listeners by virtue of its being registered. Nor does registration make a scandalous mark more accessible to children. Absent any concerns that trademark registration invades a substantial privacy interest in an intolerable manner, the government’s interest amounts to protecting everyone, including adults, from scandalous content. But even when “many adults themselves would find the material highly offensive,” adults have a First Amendment right to view and hear speech that is profane and scandalous.

[…]

Even if we were to hold that the government has a substantial interest in protecting the public from scandalous or immoral marks, the government could not meet the third prong of Central Hudson, which requires the regulation directly advance the government’s asserted interest. 447 U.S. at 566. As the government has repeatedly exhorted, § 2(a) does not directly prevent applicants from using their marks. Regardless of whether a trademark is federally registered, an applicant can still brand clothing with his mark, advertise with it on the television or radio, or place it on billboards along the highway. In this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.

This doesn’t end the battle. The government may decided to appeal this decision, lining up this portion of Section 2(a) for a review by the Supreme Court. Or, as Randazza points out, legislators could decide to ruin the registration of bad words for everyone with “for the children” legislation altering the contours of language eligible for trademark protection.

But, for the moment, the First Amendment triumphs over USPTO prudery. Let the F-bomb gold rush begin!

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Companies: fuct

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Comments on “Appeals Court OKs F-Bombs For Federal Trademark Protection”

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32 Comments
Anonymous Coward says:

The movie "Idiocracy" was wildly optimistic that will take 500 years to undo civilization.

Besides the utterly flawed setting with a society of idiots maintaining even an electric grid. Civiliation is fragile, kids. Quit kicking it.

YOU who are giggling over this continued slide into barbarism are acting out that movie. Won’t be long before YOU will harassed for being too smart and decent, though.

Rapnel (profile) says:

Re: The movie "Idiocracy" was wildly optimistic that will take 500 years to undo civilization.

.. and her ass was shaped like this ( hands, fingers, heart shape, shadow rabbits ) and I hit that in your driveway and your ma was like da-yaam! and I was like “yeah, like that”. You want some, don’t you? Yeah you do. Civilized folk, and all that.

Anonymous Coward says:

Re: The movie "Idiocracy" was wildly optimistic that will take 500 years to undo civilization.

We should be so lucky to have the government from Idiocracy. They were idiots, but only in the sense that they didn’t know much. But when they found a smart (compared to them) expert, they listened to him. And while they were crude and sex obsessed, they also respected the opinion of the woman cabinet member.

orbitalinsertion (profile) says:

Re: The movie "Idiocracy" was wildly optimistic that will take 500 years to undo civilization.

Civilization has always been barbarous. But i don’t know how this relates to being able to register a mark with “fuck” or something in it. The marks mean nothing other than you can now avoid the company based on it expressing its true self, if you like, without fear of someone else copying their mark.

Jordan Chandler says:

Children

All children eventually grow up. While I know instinctively parents want to protect their children from “bad language”, it’s only bad because they’ve decided some words are literally taboo. It’s a type of thought crime. Why is poop ok but not shit? Why is sex ok but not fuck? These kids will eventually grow up and say all of these things.

Thad (user link) says:

Re: Children

While I know instinctively parents want to protect their children from "bad language"

I am curious about how much it’s instinctive. I’ve grown up assuming it was cultural, a product of nurture rather than nature, but there’s quite a bit of research that profanity serves the same function that other aggressive/dominant behaviors do. This suggests that it’s something inherent in how communication developed, though the specific words that trigger it aren’t universal.

I also read a study that there are some outliers who react to spelling and grammatical errors the way most people react to profanity. I realized that I’d been unconsciously treating those things as if they were a form of aggression for years.

Anonymous Coward says:

Re: Re: Children

>> “I also read a study that there are some outliers who react to spelling and grammatical errors the way most people react to profanity.”

Yeah… The many “inliers” need to read a study to learn the bleedin’ obvious.

Even machines react to spelling and grammar errors. Honest. Ask ANY programmer.

Then, if you’re right in “most people” disliking profanity, why aren’t you railing at this lawyerly assault on simple decency? MOST PEOPLE don’t like being kicked in the head, either. It’s all mystery to you, judging by your tone here.


Same topic, another connection. In the Gawker case, one exec was asked “well, how young before you would protect a child’s privacy?” Long pause, then “Four.” — That’s the answer a psychopathic calculated, not what any decent person would come up with. — We must not let calculating psychopaths like lawyers decide what civility means: they are CERTAIN to lower it beyond sustainable.

Anonymous Coward says:

Re: Children

>> “It’s a type of thought crime.”

NO, it’s common decency. Human brains are wired to avoid offending: that’s key to cooperation, which I assume you’re for since don’t live in a cave.

And, uh… OH, just ask your MOTHER for the rest, if you actually can’t figure why vulgarisms should be avoided. — Try going to her (or almost any female) and saying: “HEY YA FUCKING CUNT BITCH, WHAT SHIT YA DOING?” — I bet even yoiu at advanced age can learn what NOT to do. It may be ineffable (that means not easy to put in words), but it’s DEFINITE. Go on, try it now. I’ll wait for response.

Anonymous Coward says:

Re: Re: Re: Children

>> “Offending whom?”

TRY WHAT I SUGGEST ON YOUR MOTHER. OR ANY FEMALE. So many as takes to get a good statistically significant sample.

I don’t need to argue the point. You are stupid. Read what I added above: you are likely a calculating borderline psychopath who doesn’t actually what others feel.

Anonymous Coward says:

Re: Re: Children

You don’t want to teach the kids not to use vulgarisms, you want to shield them from ever being exposed to them. Meaning when they ARE exposed to them, they will have no context or understanding that it is wrong until they get punished for using it.

You want to pretend the real world doesn’t exist around them until you arbitrarily decide they are ready, which will probably be at the least years after they’ve already been exposed to the very things you tried to shield them from and failed to teach them about.

Are we going to legally ban cursing in public, because a child might be around? What about a kid sneaking downstairs to watch after hours TV? I mean, they’ll get exposed to it as well.

You seem to be conflating ‘teaching them not to swear’ with ‘trying to do the impossible and prevent swears from existing until you think they are ready’.

Guess what I learned after my uncle hammered his thumb and cursed in pain? Thats not a word to use because it’s inappropriate for any situation I would find myself in at that age. Learned. I wasn’t allowed to curse freely at all hours of the day, but that doesn’t mean my mother tried to pretend the world didn’t exist ‘until I was ready’.

charliebrown (profile) says:

But if F and C are rude, how bad is the FCC?

I still want to know why you can’t swear on American network television. UK have guidelines in place to avoid kids hearing it. Australia has similar guidelines for similar reasons. But in America something mild is still bleeped or pixellated at midnight when all good kids should be in bed. And that’s the law thanks to a government agency. Waht happened to the first amendment there?

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