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

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2 years ago

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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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SAT Drops Subject Tests and Optional Essay Section

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January 19, 2021

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  • The College Board will discontinue SAT subject tests effective immediately and will scrap the optional essay section in June. 
  • The organization cited the coronavirus pandemic as part of the reason for accelerating these changes.
  • Regarding subject tests, the College Board said the other half of the decision rested on the fact that Advanced Placement tests are now more accessible to low-income students and students of color, making subject tests unnecessary. 
  • It also said it plans to launch a digital version of the SAT in the near future, despite failing to implement such a plan last year after a previous announcement.

College Board Ends Subject Tests and Optional Essay

College Board announced Tuesday that it will scrap the SAT’s optional essay section, as well as subject tests.

Officials at the organization cited the COVID-19 pandemic as part of the reason for these changes, saying is has “accelerated a process already underway at the College Board to simplify our work and reduce demands on students.”

The decision was also made in part because Advanced Placement tests, which College Board also administers, are now available to more low-income students and students of color. Thus, College Board has said this makes SAT subject tests unnecessary. 

While subject tests will be phased out for international students, they have been discontinued effective immediately in the U.S. 

Regarding the optional essay, College Board said high school students are now able to express their writing skills in a variety of ways, a factor which has made the essay section less necessary.

With several exceptions, it will be discontinued in June.

The Board Will Implement an Online SAT Test

In its announcement, College Board also said it plans to launch a revised version of the SAT that’s aimed at making it “more flexible” and “streamlined” for students to take the test online.

In April 2020, College Board announced it would be launching a digital SAT test in the fall if schools didn’t reopen. The College Board then backtracked on its plans for a digital test in June, before many schools even decided they would remain closed.

According to College Board, technological challenges led to the decision to postpone that plan.

For now, no other details about the current plan have been released, though more are expected to be revealed in April. 

See what others are saying: (The Washington Post) (NPR) (The New York Times)

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Biden To Block Trump’s Order Lifting COVID-19 Travel Ban

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5 hours ago

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January 19, 2021

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  • President Trump issued an executive order Monday lifting a ban on travelers from the Schengen area of Europe, the U.K., Ireland, and Brazil. 
  • Trump said the policy will no longer be needed starting Jan. 26, when the CDC will start requiring all passengers from abroad to present proof of a negative coronavirus test before boarding a flight.
  • The move was cheered by the travel industry; however, incoming White House press secretary Jennifer Psaki warned that Biden’s administration does not intend to lift the travel restrictions. 

Trump Order End To COVID-19 Travel Ban

President Donald Trump issued an executive order Monday ending his administration’s ban on travelers from the Schengen area of Europe, the U.K., Ireland, and Brazil.

That ban was put in place last spring in an effort to curb the spread of coronavirus in the U.S. In his announcement, however, Trump said the policy will no longer be needed starting Jan. 26, when new rules from the Centers for Disease Control and Prevention go into effect.

Starting that day, the CDC will require all passengers from abroad to present proof of a negative coronavirus test before boarding a flight.

The recommendation to lift the ban reportedly came from Alex Azar, the U.S. Secretary of Health and Human Services. According to Trump’s proclamation, “the Secretary reports high confidence that these jurisdictions will cooperate with the United States in the implementation of CDC’s January 12, 2021, order and that tests administered there will yield accurate results.”

It’s worth noting that the ban will stay in place for travelers from Iran and China. Still, Trump’s announcement was generally cheered by members of the travel industry who have been pushing to lift the ban and require preflight testing instead. 

Biden To Block Trump’s Order

Soon after the news broke, the incoming White House press secretary for President-elect Joe Biden, Jennifer Psaki, warned that Biden would block Trump’s order.

“With the pandemic worsening, and more contagious variants emerging around the world, this is not the time to be lifting restrictions on international travel,” she wrote on Twitter.

“On the advice of our medical team, the Administration does not intend to lift these restrictions on 1/26.  In fact, we plan to strengthen public health measures around international travel in order to further mitigate the spread of COVID-19,” she added.

With that, it seems unlikely that Trump’s order will actually take effect. 

It’s also worth noting that this is one of many executive orders Trump has issued just before inauguration day.

Source: Whitehouse.gov/presidential-actions

Some of these orders could soon be overturned once Biden takes office Wednesday. Biden is also expected to roll out his own wave of executive orders in his first 10 days as president.

See what others are saying: (The Wall Street Journal) (The New York Times) (CNN)

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New COVID-19 Variant Could Become Dominant in the U.S. by March, CDC Warns

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4 days ago

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January 15, 2021

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  • The CDC warned Friday that a new highly transmissible COVID-19 variant could become the predominant variant in the United States by March.
  • The strain was first reported in the United Kingdom in December and is now in at least 10 states.
  • The CDC used a modeled trajectory to discover how quickly the variant could spread in the U.S. and said that this could threaten the country’s already overwhelmed healthcare system.

CDC Issues Warning

The Centers for Disease Control and Prevention warned Friday that the new COVID-19 variant could become the predominant variant in the United States by March.

While it is not known to be more deadly, it does spread at a higher rate, which is troubling considering the condition the U.S. is already in. Cases and deaths are already on the rise in nearly every state and globally, 2 million lives have been lost to the coronavirus. 

The variant was first reported in the United Kingdom in mid-December. It is now in 30 countries, including the U.S., where cases have been located in at least ten states. Right now, only 76 cases of this variant have been confirmed in the U.S., but experts believe that number is likely much higher and said it will increase significantly in the coming weeks. It is already a dominant strain in parts of the U.K.

Modeled trajectory shows that growth in the U.S. could be so fast that it dominates U.S. cases just three months into the new year. This could pose a huge threat to our already strained healthcare system.

Mitigating Spread of Variant

“I want to stress that we are deeply concerned that this strain is more transmissible and can accelerate outbreaks in the U.S. in the coming weeks,” said Dr. Jay Butler, deputy director for infectious diseases at the CDC told the New York Times. “We’re sounding the alarm and urging people to realize the pandemic is not over and in no way is it time to throw in the towel.”

The CDC advises that health officials use this time to limit spread and increase vaccination as much as possible in order to mitigate the impact this variant will have. Experts believe that current vaccines will protect against this strain.

“Effective public health measures, including vaccination, physical distancing, use of masks, hand hygiene, and isolation and quarantine, will be essential,” the CDC said in their report.

“Strategic testing of persons without symptoms but at higher risk of infection, such as those exposed to SARS-CoV-2 or who have frequent unavoidable contact with the public, provides another opportunity to limit ongoing spread.”

See what others are saying: (Wall Street Journal) (New York Times) (NBC News)

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