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Can “Fuct” Be Trademarked? Supreme Court Hears Key Case For Free Speech

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  • The Supreme Court heard a case on Monday involving whether or not the clothing brand Fuct can legally receive a trademark.
  • Erik Brunetti, the founder and owner of Fuct, claims the U.S. Patent and Trademark Office unconstitutionally violated his First Amendment rights when they denied him trademark protection for the brand.
  • The Patent and Trademark Office claims that the brand name violates the Lanham Act, a federal law that bans trademark protection for words that are “immoral,” “shocking,” “offensive,” and “scandalous.

Iancu v. Brunetti

The Supreme Court must decide whether or not the word “Fuct” can be trademarked.

On Monday, the nation’s highest court heard Iancu v. Brunetti, a case involving designer Erik Brunetti, who claims the U.S. Patent and Trademark Office acted unconstitutionally and violated his First Amendment rights when it refused to trademark his streetwear brand Fuct.

Brunetti founded Fuct in 1990, and since then, his brand has seen a rise in counterfeit products offered by third-party sellers. Brunetti says these products are costing him significant money.

“Go to eBay, and you’ll see a lot of counterfeits, or go to Amazon, and you’ll see lots of counterfeits,” Brunetti said.

If he wins his trademark, Brunetti will be able to sue eBay and Amazon to force them to remove the knockoff products from their sites. He will also be able to go after the counterfeiters and shut them down.

How the Case Reached the Supreme Court

Brunetti tried to copyright Fuct in 2011, but was denied by the U.S. Patent and Trademark Office, which claimed the name violates the Lanham Act, a federal statute that bans trademark protection for words that are “immoral,” “shocking,” “offensive,” and “scandalous.”

Brunetti appealed the decision, but for a while, nothing happened.

Then in 2017, the Supreme Court ruled in favor of an Asian-American band called The Slants, saying that the band could not be denied trademark protection. In a parallel case, the Patent and Trademark Office had denied the band a trademark because it believed the band’s name was racially “disparaging.”

The case, known as Matal v. Tam, was brought before the court, which ultimately ruled that the denial was unconstitutional viewpoint discrimination.

“The disparagement clause violates the First Amendment’s Free Speech Clause,” Justice Samuel Alito wrote in his opinion, “Contrary to the Government’s contention, trademarks are private, not government speech.”

Matal v. Tam was expected to have a significant impact on other trademark cases. For Brunetti, this was a huge boost.

Following the 2017 ruling, the U.S. Court of Appeals for the Federal Circuit decided that Brunetti should be allowed a trademark under the precedent set by Matal v. Tam, stating that the Lanham Act was unconstitutional because it violates the first amendment.

After the Court of Appeals ruled in favor of Brunetti, the government appealed the decision, and the Supreme Court agreed to hear the case.

Supreme Court Hears Case

During Monday’s hearing, the Justices of the Supreme Court were careful not to say the name of the brand.

The justices looked at a chart that showed terms had been given trademarks by the government and terms that had not.

Similar terms that had been given trademark protection include “FCUK” and the well-known brand “FUBAR.” The term “Crap” was registered 70 times in a trademarked name, but the “Shit” was repeatedly denied.

While viewing the chart, Justice Ruth Bader Ginsburg asked how the Patent and Trademark Office defines “scandalous,” “shocking” or “offensive.” Justice Ginsberg also asked if 20-year-olds, the target audience for the brand, generally find Fuct to be “shocking” or “scandalous.”

Malcolm Stewart, the lawyer for the government, conceded that 20-year-olds probably do not find Fuct to be “shocking” or “scandalous,” but he argued that the term would still be offensive to a lot of the population, which gives it grounds to be denied a trademark.

Justice Brett Kavanaugh said that he was troubled by the chart, saying it showed “erratic or inconsistent enforcement” of the Lanham Act. He argued that the chart seemed to show that the terms that were denied were hardly different from the terms that had been approved, and that the decision to approve or deny terms appeared to be made without any specific reason.

Justice Neil Gorsuch echoed this sentiment, saying that the examples given in Brunetti’s brief were “remarkably similar,” adding, “I could not myself see a rational line.”

Justices Gorsuch and Kavanaugh have an interesting point here.

According to a study by two New York University law professors, between 2003 and 2015 the government rejected around 2,000 trademark applications which they claimed were “immoral” or “scandalous” under the Lanham Act. The lawyers who wrote the study also argued that the decisions to deny or approve these cases are inconsistent and arbitrary.

Hard Questions

The Justices posed some hard questions to the government, but they were also sure to put the pressure on Brunetti and his lawyer as well.

Justice Stephen Breyer wondered why the government does not have the ability to deny the brand a trademark, while still recognizing Brunetti’s right to use the language in his brand without trademark protection.

Breyer also worried that allowing the trademark for Fuct would create a slippery slope whereby racial slurs could be trademarked, which could lead to slurs and offensive words appearing on newsstands, advertisements on buses, and in malls.

However, Justice Ginsberg pushed back on this concern.

“Suppose in the niche market that these goods are targeting, the name is mainstream,” said Justice Ginsberg, “These goods, as I understand it, are meant to attract a particular market, and if we concentrate on that market the word is mainstream.”

Like Matal v. Tam, Brunetti’s case would set a huge precedent for free speech if he recieves his trademark. However, the court is not set to make a decision until this summer, so those who are eager to see a decision in the closely-watched case will have to wait.

See what others are saying: (NPR) (GQ) (The Washington Post)

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Biden Issues Targeted Eviction Moratorium for Counties With High Community Transmission

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While more limited than the previous eviction ban, the new policy applies to all areas with “substantial” and “high” COVID transmission, which currently includes 80% of counties that compose 90% of the population.


New Eviction Ban

Three days after the federal eviction ban expired, the Biden administration issued a new, more limited moratorium that will extend until Oct. 3.

Unlike the last freeze, the latest version announced Tuesday only pertains to areas of the country experiencing what the Centers for Disease Control and Prevention labeled “substantial” and “high” cases of COVID-19.

However, the rule still applies to the majority of the country given the new surges driven by the delta variant.

According to the CDC, 80% of counties that make up 90% of the population are currently experiencing substantial or high community transmission. 

While not a full ban, many housing still advocates cheered the Biden administration, which has faced immense pressure to help the millions of Americans who risked losing their homes once the previous freeze expired.

“This is a tremendous relief for millions of people who were on the cusp of losing their homes and, with them, their ability to stay safe during the pandemic,” Diane Yentel, president of the National Low Income Housing Coalition, said in a statement Tuesday. 

Hurdles Remain

Still, others noted that there are outstanding issues with the new policy.

First and foremost, while the moratorium covers most Americans, it does not cover all. According to reports, there are counties in Wisconsin, Michigan, Pennsylvania, and New York that are protected from evictions while neighboring counties are not.

The county-to-county patchwork also adds another layer of confusion for many people who are on the brink of eviction or who have already been evicted. 

Tenants and landlords are now scrambling to see if the freeze applies to them, and because of the temporary lapse in protection, evictions resumed in some states and cities, meaning that some people who would now be covered under the ban have already been evicted.

Perhaps the most notable obstacle is the fact that the new moratorium will almost certainly face legal challenges.

The Biden administration previously argued that it did not have the jurisdiction to extend the eviction freeze unilaterally, citing a recent decision from the Supreme Court, which ruled that the CDC could not extend the ban past July and that Congressional action was needed.

Three days before the moratorium was set to expire, Biden asked Congress to pass legislation to extend it before leaving for their August recess. Republicans blocked the effort by unanimous consent, and Democratic leaders, frustrated with the president’s last-minute demand that left them with few options, said they did not have enough support for a formal vote.

Biden, for his part, has acknowledged that any freeze that comes from his administration would face this obstacle.

“Any call for [a] moratorium based on the Supreme Court’s recent decision is likely to face obstacles,” he told reporters Tuesday. “I’ve indicated to the CDC, I’d like them to look at other alternatives [other] than the one that is in existence, which the court has declared they’re not going to allow to continue.”

Any legal proceedings, however, will take time, meaning Congress could act before any disputes are resolved. The extended timeframe would also give state and local governments more leeway to distribute the nearly $47 billion in rental aid approved in the last two stimulus packages.

Only $3 billion of the funding has been distributed due to the numerous delays and hurdles municipalities have faced while struggling to create new systems to dole out the much-needed aid. 

See what others are saying: (The Washington Post) (NPR) (CBS News)

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Virtually All Emperor Penguins Doomed for Extinction by 2100, Study Finds

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The new study comes as the U.S. The Fish and Wildlife Service moves to submit a proposal Wednesday to add the Emperor penguin to its list of threatened species.


Concerns for Emperor Penguins

Nearly all of the world’s emperor penguin colonies may be pushed to the brink of extinction by 2100, according to a study published Tuesday in the journal Global Change Biology.

More specifically, researchers behind the study said 98% of the colonies could be gone in the next 80 years if climate change continues causing sea ice to melt at its current pace. About 70% of colonies could die off by 2050, it added.

That is pretty huge news because Emperor penguins — the world’s largest penguin species —are a vital part of the Antarctic food chain. They prey on krill, squid, and small fish, and provide a source of food for leopard seals and killer whales.

However, the birds are particularly vulnerable to climate change because they depend on sea ice for viral activities like breeding, feeding, and molting, along with resting or seeking refuge from predators.

U.S. Moves To Protect the Species

The new study comes as the U.S. government considers adding the Emperor penguin to its list of threatened species under the Endangered Species Act.

The U.S. Fish and Wildlife Service plans to build off this new research, along with other data, for its proposal on Wednesday. Once published in the Federal Register, the proposal will be open to a 60-day public comment period.

If the classification is granted, the species would receive protections, including a ban on importations of the birds for commercial purposes.

“These penguins are hard hit by the climate crisis, and the U.S. government is finally recognizing that threat,” Sarah Uhlemann, international program director at the nonprofit Center for Biological Diversity, told the Associated Press.

“Climate change, a priority challenge for this Administration, impacts a variety of species throughout the world,” said Martha Williams, principal deputy director of the wildlife service. “The decisions made by policymakers today and during the next few decades will determine the fate of the Emperor penguin.”

See what others are saying: (The Washington Post) (The Hill) (AP News)

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Florida Breaks Its Record for New Daily COVID-19 Cases and Hospitalizations

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The Sunshine State now accounts for 20% of all new COVID-19 cases nationwide.


Florida Becomes COVID Epicenter

Florida reported 10,207 COVID-19 hospitalizations on Sunday, marking its largest single-day count to date. The grim record comes just one day after the Centers for Disease Control and Prevention released data showing that the state had counted 21,683 new infections Friday, its highest record of daily cases since the start of the pandemic.


Florida has become the new epicenter of the most recent U.S. outbreaks driven by the delta variant. The state now accounts for one out of every five new cases, and the weekend numbers are highly significant because they surpass previous records that were logged before vaccines were readily available.

Notably, Florida’s vaccination rate is actually the exact same as the nationwide average of 49% fully vaccinated, according to The New York Times tracker. In fact, Florida’s rate is the highest among the top 10 states currently reporting the most COVID cases.

While Gov. Ron DeSantis (R) has encouraged Florida residents to get vaccinated, he and the state’s legislature have also made it much harder for local officials to enforce protections to mitigate further spread.

DeSantis Bars Masking in Schools

On the same day that the state reported its highest cases ever, DeSantis signed an executive order banning school districts from requiring students to wear a mask when they go back to school later this month.

The move directly contradicts guidance issued by the CDC last week, which recommended that everyone inside K-12 schools wear a face covering.

DeSantis, for his part, has repeatedly claimed the spikes are part of “seasonal” increases driven by more people being indoors and air-conditioning systems circulating the virus. Still, he argued also Friday that he did not think masks were necessary to prevent children from transmitting COVID in the classroom, where they are inside with air conditioning.

At the same time, last week, Florida reported more than 21,000 infections among children younger than 19.

Florida is not the only state that has banned schools from requiring masks. In fact, many of the states suffering the biggest spikes have done the same, including Arkansas, Oklahoma, and Texas — which all currently rank among the top 10 states with the highest per capita COVID cases.

See what others are saying: (The Washington Post) (NPR) (Axios)

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