Is Section 2(a) Fucked?

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Regular readers may recall that the U.S. Constitution requires that we be allowed to register disparaging trademarks like THE SLANTS and REDSKINS, even though it used to be prohibited under Section 2(a) of the Lanham Act.

But what about the part of Section 2(a) that prohibits registration of immoral or scandalous trademarks. “When, oh when, will the courts deal with that?” you ask.

You’ll be happy to know the Court of Appeals is currently considering whether Erik Brunetti will be allowed to register FUCT for athletic and infant apparel.

They should have sold tickets to the oral argument.[1]

Mr. Brunetti argued that FUCT isn’t scandalous because it’s pronounced “F” “U” “C” “T”. The court asked about an ad featuring people wearing FUCT brand shirts while flipping off the camera. Mr. Brunetti’s lawyer had the enviable opportunity to tell the court that: “Giving the finger doesn’t necessarily mean that the T-shirt means ‘fucked’.”[2]

The attorney for the government was asked by the court how the “scandalous” prohibition could be allowed to stand when the “disparaging” provision has been ruled unconstitutional: “What argument could even exist in the ether that would allow this provision to stand?”

How could the nice man answer that?

The Court’s question may be a tip off of where the court is heading. I’ll definitely let you know when there’s a ruling, but, for now, waddaya think? Should Mr. Brunetti be able to secure the additional rights that come with registering a trademark even if that trademark is FUCT?

 

[1] 

[2] Mr. Brunetti already has a registration for SSDD, which certainly does not stand for Same Shit Different Day.

2 thoughts on “Is Section 2(a) Fucked?

  1. There’s already a clothing brand, presumably trademarked, FCUK: French Connection UK. Maybe the Brits are less easily offended?

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    • FCUK is a registered mark in the US and got through the Trademark Office was not even a whisper of objection about what you get when you scramble the letters. Go figure.

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