An Anything Goes Approach to Trademarks: The FUCT Clothing Line

 Erik Brunetti, FUCT clothing line founder

FUCT clothing line founder Erik Brunetti | Damian Dovarganes/Courtesy The Associated Press

The U.S. Supreme Court stopped short recently of putting into law what composer and songwriter Cole Porter, in his 1934 musical “Anything Goes,” whimsically observed:

“In olden days, a glimpse of stocking
Was looked on as something shocking.
But now, God knows,
Anything goes. …

“Good authors too who once knew better words
Now only use four-letter words
Writing prose.
Anything goes.”

The justices held that a clothing line known by the initials “FUCT” — which, based on online offerings, does not yet include stockings — could not be denied trademark registration on the grounds that, essentially, it is too reminiscent of the common swear word “fucked.”

The majority opinion in Iancu v. Brunetti, written by Justice Elena Kagan, said current federal law regarding “immoral or scandalous” trademarks violates the First Amendment by being too broadly written.

But Kagan, and a number of other justices in concurring or partially dissenting views, invited Congress to write a new statute that would preclude an “Anything Goes” approach to trademarks. Justice Samuel Alito wrote in his concurrence that a new law should be based on more specific language addressing terms that “play no part in the expression of ideas.”

The Los Angeles-based clothing designer who created the clothing line FUCT has been seeking trademark protection for years. He has said the brand name is pronounced by speaking each letter in order and that it stands for “Friends U Can’t Trust.”

Kagan acknowledged the letter-by-letter style, then added, “But you might read it differently and, if so, you would hardly be alone.” Still, she wrote that striking down current law was needed because its vagueness improperly provided room for government officials to protect viewpoints they support and disfavor views or ideas they do not endorse.

“Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas,” Alito wrote in his concurring opinion. Registration of such marks “serves only to further coarsen our popular culture,” he said, but that the justices are “not legislators and cannot substitute a new statute for the one now in force.”

Some justices worried the ruling may open the door for others to use shocking terms such as racial epithets, for example, on clothing. Several would have kept a ban on “scandalous” words: Justice Stephen Breyer said he would do so because “these attention-grabbing words” may lead “to the creation of public spaces that many will find repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations.”

Lack of a trademark does not stop clothing manufacturers from using a brand name such as “FUCT,” but does deny benefits of the designation, such as protection from imitators.

The court’s decision is in keeping with a 2017 ruling, in a case involving a rock band wishing to protect the name “The Slants” — seen by some as a racial slur — in which the justices ruled unanimously that trademarks seen as “disparaging” have First Amendment protection.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at [email protected], or follow him on Twitter at @genefac.

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