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Justices and Lawyers Sidestep Profanity in 'Scandalous' Trademark Case

The U.S. solicitor general's petition in a trademark dispute over the mark "FUCT."

U.S. Supreme Court justices and the lawyers arguing before them went out of their way Monday to avoid the four letters at the very core of the case of Iancu v. Brunetti: FUCT.

The issue in the First Amendment case was whether "FUCT," the name of Erik Brunetti's line of clothing, could be trademarked, or whether it would violate the Lanham Act, which bans registration of "immoral … or scandalous matter."

Deputy Solicitor General Malcolm Stewart, who was defending the constitutionality of the law, came up with the most creative way of describing the word without saying it. "This mark," Stewart said to the justices, "would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language."

Later he condensed that mouthful of alliterative words to: "the past participle form of the paradigmatic profane word in our culture." Stewart added, "It's hard to see what would be covered by the law if this is not."

Several justices seemed to search for a line that could be drawn to deny registration to some words without running afoul of the First Amendment. But justices were also aware that the momentum of pro-free speech decision-making by the court in recent years has made drawing that line difficult. Just two years ago, in Matal v. Tam, the court ruled that disparaging marks could not be denied registration under the Lanham Act.

Justice Elena Kagan. Photo: Diego M. Radzinschi/NLJ

As they struggled to find the line, the justices avoided uttering FUCT and related words themselves. Justice Elena Kagan called them "those words," and Justice Stephen Breyer sidestepped by saying, "Most people know what words we're talking about."

Chief Justice John Roberts Jr., who has two teenage children old enough to have heard if not spoken expletives, sympathized with the plight of "parents who are trying to teach their children not to use those kinds of words" who might see people wearing FUCT clothing while walking with their children in a shopping mall.

John Sommer, the California lawyer representing Brunetti, pledged beforehand in his brief that at oral argument, he would not utter the word that he wants to be trademarked. “It is not expected that it will be necessary to refer to vulgar terms during argument," Sommer wrote in a footnote.

Sommer kept his promise, though he spelled out similar words like FVCK and FCUK that have won trademark protection.

When Stewart said words like PHUC would be examined in context by the Patent and Trademark Office before deciding on whether it could be trademarked, Justice Neil Gorsuch made it clear he had had enough of the terminology.

"I don't want to go through the examples," Gorsuch exclaimed. "I really don't want to do that."

Read more:

Don't Expect Profanities to Fly When Justices Hear 'FUCT' Trademark Case

In Quoting Profanity, Some Judges Give a F#%&. Others Don't

Supreme Court to Review Patent Office Ban on Vulgar Trademarks

Federal Circuit Wrestles With Vulgar Trademarks in 'Fuct' Case