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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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Soldier Charged With Assault After Shoving Black Man in Viral Video

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8 hours ago

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April 15, 2021

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  • Authorities charged Army soldier Jonathan Pentland with third-degree assault and battery on Wednesday after a viral video showed him shoving a Black man while yelling at him to leave a South Carolina neighborhood.
  • Many people, including dozens who protested outside Pentland’s home this week, condemned the confrontation as another instance of someone being attacked for “walking while Black.”
  • Pentland and others claimed the unidentified man was picking a fight with neighbors, which the man denied, but police said nothing that may have happened earlier justified Pentland’s actions.
  • If convicted, Pentland faces a $500 fine and 30 days in jail.

Viral Video

A U.S. soldier was charged with assault on Wednesday after a video that circulated online showed him yelling at and shoving a Black man in a South Carolina neighborhood.

Footage of the April 8 incident was posted to social media Monday. It shows the Army soldier, Jonathan Pentland, confronting the unidentified man and telling him to leave the neighborhood. 

The other man explains that he’s just walking through the area and doing nothing wrong, but Pentland becomes increasingly aggressive. “You better walk away,” he shouts at the man after shoving him.

“You either walk away, or I’m gonna carry your ass out of here,” he continues before adding, “You’re in the wrong neighborhood motherf*ker. Get out!”

The man then tries to tell Pentland that he lives in the neighborhood, and Pentland then asks for his address, which he does not give.

The confrontation continues with Pentland cursing and getting in the man’s face. As he does so, the man says that Pentland smells drunk. 

It’s unclear what exactly led up to the confrontation, but in the video, a woman off-camera says the man “picked a fight with some random young lady that’s one of our neighbors.”

“I don’t even know who she is. Nobody picked a fight when someone ran up on me,” the man replies. Another woman off-screen then encourages the man to leave with her, saying, “What’s your name? Come on. You don’t want no trouble.”

Video Triggers Protests Outside Pentland’s Home

After this video spread online, many social media users condemned it as another instance of someone being attacked for “walking while Black.”

In fact, protesters even began demonstrating outside of Penland’s home. Those protests started off peaceful, but deputies were then called after 8 p.m. because unknown individuals vandalized the house. That forced police to shut down access to the area and remove Pentland’s family to another location.

As far as the viral video, deputies were told that the man approached “several neighbors in a threatening manner” and that someone had asked Pentland to “intervene.”

Police did confirm that there are two reports of alleged assault against the unnamed man Pentland shoved that are being investigated. However, they also added that the man has “an underlying medical condition that may explain the behavior exhibited in the alleged incidents.”

Pentland Charged

Either way, police said whatever happened earlier did not justify Pentland’s actions. He was ultimately arrested Wednesday morning and was charged with third-degree assault and battery. He faces a $500 fine and 30 days in jail if convicted.

“We’re not going to let people be bullies in our community,” Richland County Sheriff Leon Lott said at a news conference Wednesday. “And if you are, you’re going to answer for it, and that’s what we’ve done in this case.”

On top of that, the Justice Department reportedly was investigating. Pentland’s Commanding General even issued a statement condemning his behavior, adding that Pentland “brought disrespect to @fortjackson our Army and the trust with the public we serve.”

See what others are saying: (The Washington Post) (ABC News) (Huffpost)

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Texas Students Created Snapchat Group To ‘Slave Trade’ Black Classmates

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1 day ago

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April 14, 2021

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  • Freshmen at a Texas high school set up a Snapchat group to pretend to sell their Black classmates. 
  • A screenshot showed the group name being changed from “Slave Trade” with emojis of a Black man, a gun, and a white police officer to “[racial slur] Farm” and then “[racial slur] Auction.”
  • That image also shows a person saying they would spend $100 on a peer while a second student said they would spend $1 on another, adding “would be better if his hair wasn’t so bad.”
  • The school faced backlash for initially describing it as “an incident of cyberbullying and harassment,” without acknowledging the racism. The district later issued a stronger condemnation and said the students were disciplined but did not list specific consequences.

Racist Snapchat Group

Aledo high school students at Daniel Ninth Grade Campus in Northern Texas are making headlines for setting up a Snapchat group to pretend to sell their Black classmates. 

A screenshot reviewed by several local news outlets showed the group name being changed from “Slave Trade” with emojis of a Black man, a gun, and a white police officer to “[racial slur] Farm” and then “[racial slur] Auction.”

That image also shows a person saying they would spend $100 on a peer. A second student said they would spend $1 on another, adding “would be better if his hair wasn’t so bad.”

Screenshot of group chat message via KXAS

At least one student who was mentioned as being “sold” in the chats was later sent screenshots of the conversations.

According to a report from the Star-Telegram reported last week, when the issue was brought to Principal Carolyn Ansley, she sent parents an email that didn’t mention the Snapchat group but only cited “an incident of cyberbullying and harassment.”

That caused frustrations because parents felt the issue of racism wasn’t being addressed or acknowledged.

Mark Grubbs, a father of three former students, told KXAS he was sickened by the students’ actions. Grubbs, who is Black, also said he had taken his children out of the district over other racist incidents in the past.

“My son being called out of his name and what not and it got to the point he didn’t mind fighting and that didn’t sit right with me and my wife. My son was never a fighter,” he said.

District Responds

After the incident garnered media attention, the Aledo Independent School District issued a statement.

The district said it learned of the incident more than two weeks ago and started an investigation that involved law enforcement.

“There is no room for racism or hatred in the Aledo ISD, period,” it added. “Using inappropriate, offensive and racially charged language and conduct is completely unacceptable and is prohibited by district policy.”

District officials spoke with the students responsible as well as their parents, saying they “made it clear that statements and conduct that targets a student because of his or her race is not only prohibited but also has a profound impact on the victims.”

The district also said it assigned disciplinary consequences, though it did not explicitly state what those consequences were or state how many students were involved.

See what others are saying: (The Washington Post) (ABC) (Fort Worth Star-Telegram)

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What You Need To Know About the Johnson & Johnson Vaccine Pause

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2 days ago

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April 13, 2021

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  • The CDC and the FDA have issued a joint recommendation to pause distribution of Johnson & Johnson’s COVID-19 vaccine amid reports that six women experienced “extremely rare” blood clots after receiving the single-dose shot.
  • The vast majority of the 6.8 million Americans who were given the Johnson & Johnson vaccine have reported minor to no side effects, and no direct link has been established between the vaccine and blood clots at this time. 
  • The two agencies are expected to release updated guidance in the coming days.
  • Several states and cities are now automatically giving the two-dose Pfizer vaccine to people who were scheduled to receive the Johnson & Johnson vaccine this week. 

CDC and FDA Recommend J&J Vaccine Halt

The Centers for Disease Control and Prevention, as well as the Food and Drug Administration, released a statement Tuesday recommending a pause on the use of Johnson & Johnson’s COVID-19 vaccine.

So far, 6.8 million people in the U.S. have been vaccinated with Johnson & Johnson’s single-dose vaccine, most with zero or only mild side effects.

The updated guidance comes after six women, all between the ages of 18 to 48, experienced what both agencies described as “extremely rare” blood clots six to 13 days after being vaccinated. One of those women has died and another is in critical condition.

Neither the CDC nor the FDA has confirmed that the Johnson & Johnson vaccine is the cause of these blood clots; rather, they said this guidance comes “out of an abundance of caution.”

That’s also in line with Johnson & Johnson itself, which said it’s aware of the reports but added that “no clear causal relationship has been established between these rare events.” As a precaution, Johnson & Johnson has also now delayed the rollout of its vaccine in Europe. 

What Happens From Here?

Principal Deputy Director of the CDC Anne Schuchat said further recommendations will come quickly.

FDA Acting Commissioner Janet Woodcock echoed that statement, saying, “We expect it to be a matter of days for this pause.”

Wednesday, a CDC committee will convene to discuss the cases and assess their potential significance.

When asked if the government was overreacting to just six cases out of nearly 7 million vaccinations (a criticism made by some online), Schuchat said the CDC pulled its recommendation specifically because the type of blood clots seen in these 6 women requires special treatment, so “it was of the utmost importance to us to get the word out.”

In the meantime, both agencies are urging Johnson & Johnson vaccine recipients to contact their doctors if they experience any combination of severe headaches, abdominal pain, leg pain, or shortness of breath. 

What If I Had A J&J Appointment?

Both agencies, as well as other health officials, are still urging unvaccinated people to take the Moderna and Pfizer vaccines when available in their area.

The White House’s COVID-19 response coordinator has said that 28 million doses of those vaccines will be made available this week. Notably, that’s more than enough for the country to continue giving 3 million shots a day. 

If you had an appointment scheduled to get the Johnson & Johnson vaccine, you’re likely not completely out of luck.

For example, while D.C. vaccination sites are canceling all Johnson & Johnson appointments between Tuesday and this Saturday, the health department there has said it’ll send out invitations on Wednesday to reschedule.

Similar situations were reported in Virginia and Maryland, though some vaccination sites in Maryland are still honoring existing appointments by automatically giving people Pfizer instead. That’s also a process that is now being conducted in places like New York State and Memphis.

See what others are saying: (Associated Press) (NBC News) (The Washington Post)

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