Tuesday, March 5, 2019

A Discourse on FUCT

The Supreme Court is hearing a number of interesting cases this term – not the least of which is the clothing manufacturer FUCT's case against the United States Patent and Trademark Office for its refusal to allow trademark registration of the mark FUCT (which is said to stand for "Friends You Can't Trust").  

  
I am pretty sure that I did some legal work back in the 1980s for a band called F.U.C.T .and I am glad they didn't ask me to try and register their trademark at that time.
  
 The current dispute has its roots in a federal law which has been on the books for over 100 years which allows the USPTO to refuse registration to marks which are "immoral, deceptive, or scandalous". The question appears to be whether or not this statute conflicts with the First Amendment.  Traditional understanding of trademark law was disturbed by the 2017 decision in Matal v. Tam which allowed trademark registration for the group name "The Slants", a case which according to the New York Times also effectively allowed registration for the Washington Redskins' previously vilified trademark).  It's actually kind of amazing to see examples of marks that have been allowed registration.  As every trademark practitioner knows dealing with the examiners at the Patent and Trademark Office and the attorneys at the Trademark Trial and Appeal Board can often be unpredictable.  The reality though is that society is probably evolved to the point where the majority of people would not find the trademark "FUCT" as offensive as they might have in the 1980s.  I am still trying to figure out  those French Connection United Kingdom jackets. This will be an interesting case to watch.  

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