10:37, April 16 29 0 abajournal.com

2019-04-16 10:37:05
SCOTUS justices avoid mention of ‘profane past participle’ in arguments on scandalous trademarks

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Illustration by Sara Wadford/Shutterstock.com.

Supreme Court justices and lawyers arguing a case involving the FUCT clothing line managed to avoid saying the word during oral arguments on Monday.

At issue in Iancu v. Brunetti is whether the Lanham Act’s ban on “immoral” and “scandalous” trademarks violates the First Amendment.

During the arguments there was “a derby of sorts among the justices and lawyers for creative ways to avoid mentioning the trademark at issue,” according to coverage by SCOTUSblog.

The lawyer arguing the case for the United States, Malcolm Stewart, described the word this way: It’s “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.”

The New York Times, the National Law Journal and the Washington Post also have coverage of the case, brought by Los Angeles artist Erik Brunetti. Also an entrepreneur, Brunetti was rejected in his bid to trademark the name for his clothing line.

Many justices said the ban on scandalous trademarks has been inconsistently applied. “There are shocking numbers of ones granted and ones refused that do look remarkably similar,” said Justice Neil M. Gorsuch.

But some justices searched for a way to ban a small number of terms, including racial slurs, that have a big impact. “It’s stored in a different place in the brain,” said Justice Stephen G. Breyer. “It leads to retention of the word. There are lots of physiological effects with very few words.”

Justices were also weighing the impact of the Supreme Court’s 2017 decision in Matal v. Tam, which found the Lanham Act’s ban on “disparaging” trademarks violated the First Amendment. The case was filed by an Asian-American rock band that wanted to trademark the name the Slants.

Related articles:

ABA Journal: “Too tasteless to trademark? SCOTUS considers whether vulgar-sounding brand name is protected by First Amendment”

ABAJournal.com: “SCOTUS to decide whether ban on ‘scandalous’ trademarks is constitutional”

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