Supreme Court OKs FUCT Trademark, Strikes Down Ban on ‘Scandalous’ Trademarks

Erik Brunetti’s LA-based clothing company can register its provocative name

Last Updated: June 24, 2019 @ 9:28 AM

A Los Angeles-based streetwear company can now get a trademark on its F-word-adjacent name, after the U.S. Supreme Court on Monday morning struck down a federal law banning “scandalous” or “immoral” registrations.

That’s good news for Erik Brunetti (pictured above), who launched FUCT nearly three decades ago alongside skateboarding icon Natas Kaupas, but has been unable to obtain a trademark for the brand’s name. The trademark office had considered applications to be “scandalous” if they were “shocking to the sense of truth, decency, or propriety” or were “disgraceful, offensive, disreputable.”

But Justice Elena Kagan, in explaining the court’s 6-3 ruling, said the law infringed on the First Amendment because it “disfavors certain ideas.”

The law, Kagan said, reached too far: rather than “draw the line at lewd, sexually explicit, or profane remarks,” it also covered “the universe of immoral or scandalous” content — giving the trademark office an unreasonable amount of flexibility to bar certain applications.

Kagan was joined by Ruth Bader Ginsburg and four conservative members of the court — Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — in reaching the decision. Chief Justice John Roberts, Stephen Breyer and Sonia Sotomayor concurred in part and dissented in part.

Brunetti, the brother of film and TV producer Dana Brunetti, has been fighting since 2011 to get the brand name trademarked. It was initially denied because the name, which Brunetti said stands for “Friends U Can’t Trust,” was the “phonetic equivalent” of the curse word and deemed scandalous.

“According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone,” Kagan said.

Reps for FUCT did not respond to a request for comment on the ruling.

Alito said registering such names “serves only to further coarsen our popular culture,” but nonetheless should be allowed on First Amendment grounds.

“Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas,” Alito said in a concurring opinion.

The Court’s ruling now opens the door for brands that may have been barred on similar grounds to reapply for their trademark.

Pamela Chelin contributed to this report.