Appeals Court OKs F-Bombs For Federal Trademark Protection

Trademark

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

Thu, Jan 11th 2018 3:31pm — Tim Cushing

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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Filed Under: disparaging, immoral, offensive, trademark
Companies: fuct

32 Comments

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Anonymous Coward, 11 Jan 2018 @ 3:34pm

For the love of FUCK!
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Ryunosuke (profile), 11 Jan 2018 @ 3:38pm

well fork us, this is a pile of bull shirt. That judge is a bench and an ash hole.
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Anonymous Coward, 11 Jan 2018 @ 4:07pm

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.
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Jordan Chandler, 11 Jan 2018 @ 4:10pm

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.
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Thad, 11 Jan 2018 @ 4:25pm

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.
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Anonymous Coward, 11 Jan 2018 @ 4:40pm

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.
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Anonymous Coward, 11 Jan 2018 @ 4:44pm

Re: Re: Children

Human brains are wired to avoid offending: that's key to cooperation

Offending whom? The kids won't be offended. Most of the parents don't care when kids aren't around, implying they're not really offended either.
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Anonymous Coward, 11 Jan 2018 @ 4:50pm

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.
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Anonymous Coward, 11 Jan 2018 @ 4:52pm

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.
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Rapnel (profile), 11 Jan 2018 @ 4:54pm

Re:
( my lighter is in the air .. fuck, aged myself.. my cell phone display light is pointed up .. fucking ki... and get off my lawn! )
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Rapnel (profile), 11 Jan 2018 @ 5:00pm

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.
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Anonymous Coward, 11 Jan 2018 @ 5:00pm

Re: The movie "Idiocracy" was wildly optimistic that will take 500 years to undo civilization.
So you quit for a while 12 hours huh? How am I supposed to take the rest of your insane clap-trap seriously, if you can’t even stay away longer then it take to make decent bbq?
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Rapnel (profile), 11 Jan 2018 @ 5:02pm

Re: Re: Re: Re: Children
Tried it. Works OK. 3 out of 5. Would buy again.
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Anonymous Coward, 11 Jan 2018 @ 5:28pm

Re:
Well fuck [TM]
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Anonymous Coward, 11 Jan 2018 @ 5:47pm

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.
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Anonymous Coward, 11 Jan 2018 @ 5:49pm

Re: Re: Children
I think what matters here is what you're trying to communicate, not the words you use to do it. Chide kids for expressing disdain and contempt, not for the words they use.
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Anonymous Coward, 11 Jan 2018 @ 5:50pm

Re: Re: Re: Re: Children
Played cards against humanity with my Mom this christmas, went pretty great.
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Anonymous Coward, 11 Jan 2018 @ 6:43pm

Re: The movie "Idiocracy" was wildly optimistic that will take 500 years to undo civilization.
Yes, if we allow a silly name to be trademarked, civilization will end.

I think you may have missed the point of the movie.
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Stephen T. Stone (profile), 11 Jan 2018 @ 7:15pm

Re: Re: Re: Children

We must not let calculating psychopaths like lawyers decide what civility means: they are CERTAIN to lower it beyond sustainable.

Someone should have told the president, then.
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Stephen T. Stone (profile), 11 Jan 2018 @ 7:17pm

Re: Re: Re: Re: Children

TRY WHAT I SUGGEST ON YOUR MOTHER. OR ANY FEMALE.

I don’t take advice from people who refer to women as “females”.
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Anonymous Coward, 11 Jan 2018 @ 7:37pm

Re: Re: Re: Re: Children
Your mother liked it just fine...
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Anonymous Coward, 11 Jan 2018 @ 8:05pm

Re: The movie "Idiocracy" was wildly optimistic that will take 500 years to undo civilization.
Yes, we get that the movie Idiocracy is prophetic. The smart couple at the beginning failed to reproduce in time, leaving the trailer trash to do so, and here we are. I'm responding to Exhibit A...
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Anonymous Coward, 11 Jan 2018 @ 8:37pm

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'.
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charliebrown (profile), 11 Jan 2018 @ 9:57pm

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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Anonymous Coward, 11 Jan 2018 @ 10:57pm

Re: Re: Re: Children
Calculating psychopaths like lawyers protect the copyright you like so much.

Try not to let what's left of the lump of porridge you call a brain dribble out through your nose. Somebody's gonna have to clean up that mess.
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Seegras (profile), 12 Jan 2018 @ 2:16am

What the fuck is this about, exactly?
It doesn't say, instead some weird euphemisms are used as kind of self-censorship in the title.
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Anonymous Coward, 12 Jan 2018 @ 3:54am

Re: But if F and C are rude, how bad is the FCC?
Because for the children is just an excuse use to enable general censorship.
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Ninja (profile), 12 Jan 2018 @ 4:36am

Re: What the fuck is this about, exactly?
"What the fuck is this about, exactly?"

Bullshit™
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Anonymous Coward, 12 Jan 2018 @ 7:44am

For the children
I'm trademarking F.U.C.K for the children...

Finding Underprivileged Children Kittens and everyone else can just F.U.C.K off...
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Dirkmaster (profile), 12 Jan 2018 @ 9:31am

Re: Re: Children
There is no such thing as common decency. There is common and there is decency, but never the twain shall meet. Just as with common sense.

It's a fantasy propagated by those who wish to inflict their morals on you. Just say no.
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orbitalinsertion (profile), 13 Jan 2018 @ 8:00am

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.
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orbitalinsertion (profile), 13 Jan 2018 @ 8:05am

Re: Re: Re: Re: Children
While many people don't care, there is a difference between "bitch" and "fuck" or "shit".

Fine ham abounds.
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