The United States Supreme Court has ended long-running litigation between an entrepreneur and the Trademark and Patent Office. Effective immediately, terms classified as »obscene« may no longer be excluded from trademark registration.
Fashion entrepreneur Erik Brunetti has been suing the office for years. He had tried to have the name of his label »FUCT«, founded in 1990, protected by the US Patent Office. There, however, his application was rejected on the grounds that it was phonetically similar to »fucked« and that vulgar words could not be protected as trademarks. In the final instance, the Supreme Court has now interpreted this view as a violation of the right to freedom of expression.
Explicit brand names can now be protected
The court, which is predominantly dominated by conservatives, is thus clearing the way for numerous brand names that have not yet been registered, as the patent office refused to accept them. However, Samuel Alito, one of the Supreme Court judges who were part of the majority decision, wrote in a commentary that the US Congress should define the term »vulgar« language more precisely and then ban it.
The decision was 6 to 3 and did not run along party lines, opponents included the democrat nominated judge Sonia Sotomayor as well as the Chief Justice John Roberts and Stephen Breyer. The winning majority was formed by Elena Kagan, Ruth Bader Ginsburg, Samuel Alito, Brett Kavanaugh, Clarence Thomas, and Neil Gorsuch.
Right to freedom of expression trumps »moral« concerns
In her statement, Kagan wrote: »We hold that this provision infringes the First Amendment because it disfavors certain ideas.« In addition, Kagan adds: »A law disfavoring ‘ideas that offend’ discriminates based on viewpoint, in violation of the First Amendment.«
Lawrence G. Walters is a lawyer specializing in freedom of expression. In his view, the ruling marks a new direction: »This decision represents a significant victory for First Amendment rights, and will provide broad opportunity for adult businesses that use explicit brand names. Some of our clients have been waiting for this decision for many years. The idea that the USPTO could deny trademark registration based on a moral viewpoint has always conflicted with free speech rights. This case finally puts any doubt about that issue to rest.«
A whole wave of trademark applications is therefore to be expected. The extent to which the US Congress is responding to the court’s request to curb further vulgarisation of everyday language through more precise laws is still unknown.