A la­bel like F-word turns to jus­tices for last word

Baltimore Sun Sunday - - NATION & WORLD - By Jes­sica Gresko

WASH­ING­TON — Erik Brunetti’s four-let­ter fash­ion brand starts with an “F” and rhymes with “duct.” The fed­eral govern­ment calls it “scan­dalous” and “im­moral” and has re­fused to reg­is­ter the trade­mark. Brunetti has a dif­fer­ent word for his brand and de­signs: “thought-pro­vok­ing.”

“We wanted the viewer to ques­tion it: Like, is that pro­nounced the way I think it’s pro­nounced?” he said of his streetwear brand “FUCT,” which be­gan sell­ing cloth­ing in 1991.

On Mon­day, the Supreme Court will hear Brunetti’s chal­lenge to a part of fed­eral law that says of­fi­cials should refuse to reg­is­ter trade­marks that are “scan­dalous” or “im­moral.” Brunetti says it should be struck down as an un­con­sti­tu­tional restrictio­n on speech.

The govern­ment is de­fend­ing the cen­tury-old pro­vi­sion. The Trump ad­min­is­tra­tion says in court pa­pers that the law en­cour­ages trade­marks that are ap­pro­pri­ate for all au­di­ences. It ar­gues it isn’t re­strict­ing speech but rather de­clin­ing to pro­mote it.

Brunetti and oth­ers like him who are de­nied trade­mark reg­is­tra­tion un­der the “scan­dalous” pro­vi­sion can still use the words they wanted to reg­is­ter for their busi­ness, non­profit or brand. They just don’t get the ben­e­fits that come with reg­is­ter­ing a trade­mark. For Brunetti, that would largely mean a bet­ter abil­ity to go after coun­ter­feit­ers who knock off his de­signs.

Brunetti would seem to have a strong ar­gu­ment.

Two years ago, the jus­tices unan­i­mously in­val­i­dated a re­lated pro­vi­sion of fed­eral law that told of­fi­cials not to reg­is­ter dis­parag­ing trade­marks. In that case, an Asian Amer­i­can rock band sued after the govern­ment re­fused to reg­is­ter its band name, “The Slants,” be­cause it was seen as of­fen­sive to Asians.

In court, the jus­tices had no trou­ble say­ing the band’s name, but Brunetti’s brand may be dif­fer­ent. His lawyer, John R. Som­mer, says he plans to say the in­di­vid­ual let­ters of the name, “F-U-C-T,” which Brunetti some­times does too. An­other pos­si­ble workaround: ex­plain­ing the brand is some­thing of an acro­nym for “Friends U Can’t Trust.”

Part of Som­mer’s ar­gu­ment is what he sees as the ar­bi­trary na­ture of the United States Patent and Trade­mark Of­fice’s de­ci­sions about what gets tagged as scan­dalous or im­moral. A lawyer work­ing for the of­fice who is from the South might find some­thing “not nice” that wouldn’t faze a lawyer from the Bronx, Som­mer said. That means “you can reg­is­ter pro­fan­ity if you’re lucky” and you get as­signed a lawyer who al­lows it, Som­mer said.

Two New York Uni­ver­sity pro­fes­sors gave that ar­gu­ment sub­stan­tial sup­port in a brief they filed in the case. They showed that the of­fice rou­tinely re­fuses to reg­is­ter trade­marks both by say­ing some­thing is scan­dalous and, iron­i­cally, too con­fus­ingly sim­i­lar to some­thing that is al­ready reg­is­tered. “MIDDLEFING­ER” was de­nied after “JONNY MIDDLEFING­ER” was reg­is­tered, and “Ko Kane” was re­jected after “Koka­nee” was reg­is­tered. And those are just some print­able ex­am­ples.

The trade­mark of­fice de­clined to com­ment on the case.

If Brunetti wins, the pub­lic is un­likely to no­tice a whole lot of change, his lawyer said. Re­tail­ers will de­cide what prod­ucts are ap­pro­pri­ate for their cus­tomers, and Tar­get and Wal­mart aren’t go­ing to carry Brunetti’s brand, Som­mer said.

Brunetti hopes a vic­tory at the high court will help him pur­sue coun­ter­feit­ers. In the nearly 30 years since he be­gan his com­pany he’s pro­duced thou­sands of cloth­ing de­signs.

Some of the best known are par­o­dies in­volv­ing the Ford logo and “Planet of the Apes.”

Now, he di­rects a staff of four from a down­town Los An­ge­les of­fice. They re­lease new cloth­ing on their web­site about once a month. Some items have sold out in less than a minute, and new col­lec­tions are al­ways sold out in un­der three days, Brunetti said. Be­cause of the items’ scarcity, some are resold on eBay for a profit

AN­DREW HARRER/BLOOMBERG NEWS 2018

The Supreme Court is to hear a case in­volv­ing a cloth­ing brand’s name that the govern­ment con­sid­ers “im­moral.”

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