Whether the prohibition on the federal registration of “immoral” or “scandalous” trademarks violates the Free Speech Clause of the First Amendment.
This case involves a facial First Amendment challenge to a provision of federal trademark law that directs the United States Patent and Trademark Office to refuse to registrar trademarks containing “scandalous” or “immoral” matter. 15 U.S.C. 1052(a). Erik Brunetti, an artist who founded a streetwear brand in 1990, sought federal registration for the trademark “FUCT” in connection with his clothing line. Brunetti’s application was refused on the ground that FUCT is “scandalous.” In reaching that conclusion the Board also noted that Brunetti’s website and blog contained “anti-social imagery,” was “lacking in taste,” and contained themes of “misogyny” and “extreme nihilism.”
The ACLU and the ACLU of the District of Columbia filed an amicus brief in support of Mr. Brunetti. The prohibition against registering trademarks that are deemed “immoral . . . or scandalous,” 15 U.S.C. § 1052(a), is viewpoint-based. It impermissibly regulates private speech because the speech “expresses ideas that offend.” The principle that the government may not regulate private expression because it deems it immoral or offensive is a bedrock foundation of the freedom of expression. Texas v. Johnson, 491 U.S. 397, 414 (1989). In Cohen v. California, 403 U.S. 15 (1971), the Court held that the First Amendment bars government officials from penalizing someone for wearing a jacket because officials considered its “Fuck the Draft” message offensive. So, too, the First Amendment prohibits officials from denying registration to Mr. Brunetti’s “FUCT” trademark because they deem it “immoral” or “scandalous.”