What The Fuct: US Supreme Court Chooses To Hear Another Trademark Case

The U.S. Supreme Court has decided that it will hear a case that involves the refusal of a trademark application for the word “FUCT” in conjunction with its use on apparel. The U.S. Patent and Trademark Office previously refused registration based on the mark being deemed to be scandalous.

The highest court in the U.S. will have the task of determining whether the U.S. Patent and Trademark Office should be able to refuse registration for marks that contain immoral, deceptive or scandalous matter in the face of the freedom of speech guarantees offered by the First Amendment of the U.S. Constitution. Section 2(a) of the Lanham Act currently allows such a refusal.

Interestingly, Section 2(a) of the Lanham Act has been successfully challenged in the past. In 2017, the U.S. Supreme Court unanimously determined that refusing registration of a disparaging trademark was a violation of the First Amendment (i.e.: Washington Redkins). Prior to that, disparaging marks were also refused under the Lanham Act.

In fact, it was the U.S. Supreme Court’s decision in the disparaging trademark case that was used by the U.S. Court of Appeals for the Federal Circuit to determine that a scandalous mark like “FUCT” should not be refused. That is what is up for appeal and which the highest court will eventually hear.

If the government loses in its appeal, then it is likely that many new profane and sexually explicit trademark applications will be filed with the U.S. Patent and Trademark Office in the future. Applicants will still be required to prove use in interstate commerce in order to actually receive registrations in connection with such applications.