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Without Using Profanity, Supreme Court Justices Discuss Case Centered On Bad Language


At the Supreme Court today, the issue was bad language. Specifically, can the government refuse to grant trademark protection for brand names that include profanity? The immediate problem for the court was how to discuss the issue without using the actual words - how to discuss the F-word, for instance, without actually saying the F-word, which is a challenge that NPR legal affairs correspondent Nina Totenberg faces in this report.

NINA TOTENBERG, BYLINE: At the center of the case is a casual clothing line marketed under the name F-U-C-T. You can pronounce it yourself. The line, designed by Erik Brunetti, is mainly hoodies, loose pants, shorts and T-shirts all with those letters prominently displayed. Brunetti opened his line in 1990 aimed at 20-somethings. He's been trying since then to get his brand, FUCT, trademarked so that he can go after copycats.

ERIK BRUNETTI: Go to eBay, and you'll see lots of counterfeits. Or go to Amazon. You'll see a lot - lots of counterfeits.

TOTENBERG: In short, he says, the knockoffs are costing him money.

BRUNETTI: If I win, I will pursue the counterfeiters to stop them from making my product.

TOTENBERG: The U.S. government Patent and Trademark Office, however, has consistently turned him down, contending that those letters violate the federal statute that bars trademark protection for immoral, shocking, offensive and scandalous words. Brunetti's case got a boost two years ago when the Supreme Court ruled that an Asian-American band calling itself The Slants could not be denied trademark protection because it used a disparaging term.

Dealing with the brand name FUCT proved a bit more daunting in the Supreme Court chamber today. Deputy Solicitor General Malcolm Stewart referred to it as, quote, "a profane past-participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language." The government, he maintained, can deny trademark protection for that word. The justices pointed to a chart showing which terms had been granted trademarks by the government and which had not. Most are not suitable for a general audience. Suffice to say that while FUCT did not win trademark approval, FCUK did, and so did the well-known brand FUBAR. The word crap was registered in a trademark name 70 times, but the S-word was consistently denied.

So, Justice Ginsburg asked, how does the Trademark Office define what is scandalous, shocking or offensive? Do 20-year-olds generally find FUCT to be shocking or scandalous? Probably not, conceded the government's Stewart. But he said the term would still be shocking or offensive to a substantial segment of the population. Justice Gorsuch pointed to the chart, declaring that it was hard to see why certain trademarks with dirty words were approved and others were denied.

Justice Alito asked what would happen when really dirty words were at issue. And how about racial slurs, asked Justice Breyer. Those are more like swear words. They're insults that sting and are remembered by those who were targeted. Stewart replied that because of the court's decision in The Slants' case, most racial slurs are now approved. But as for the most offensive slur, the N-word, for now, it's still out.

Representing FUCT designer Brunetti, lawyer John Sommer didn't have an easy time either. Justice Breyer - why doesn't the government have the right to say you can use this language in your brand name, but the government doesn't want to be associated with it by granting trademark protection? What I'm worried about, he said, is that if a racial slur is trademarked, it will appear as a product name on every bus where it's advertised. It'll be on newsstands where children and others will see it. That's not the audience Mr. Brunetti is appealing to, replied lawyer Sommer. Chief Justice Roberts - but that may not be the only audience he reaches.

Lawyer Sommer returned to the language of the statute, arguing that if offensiveness is the standard for turning down a trademark, Steak 'n Shake can't be registered either because, quote, "a substantial portion of Americans believe that eating beef is immoral." A decision in the case is expected by summer.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.