“There is only one thing in the world worse than being talked about,” Oscar Wilde once wrote, “and that is not being talked about.” Entrepreneurs and business owners often take this sentiment to heart, pushing PR buttons with edgy or controversial brand and product names. But can you push it too far?

The Patent and Trademark Office denied Erik Brunetti a trademark application for his streetwear brand FUCT, citing a federal provision that prohibits registration of trademarks that consist of or comprise immoral or scandalous matter. Brunetti challenged the decision on First Amendment grounds, and won. The Supreme Court just ruled that the “immoral or scandalous” bar to trademark applications is invalid. So Brunetti’s brand is not FUCT after all.

Only Half of the Story

The biggest issue for the Court, and opinion author Justice Elena Kagan, was the First Amendment’s prohibition on viewpoint discrimination. In other words, the government can’t allow speech on one side of a debate while restricting it on the other. In this case, Kagan determined that the Lanham Act’s ban on immoral and scandalous trademarks fell into this category:

FUCT and Freedom of Speech

With that bar removed, small businesses are free to name themselves and their products just about anything, unless their names violate other Lanham Act prohibitions on marks that are deceptive, “falsely suggest a connection with persons, living or dead,” or use wine regions other than where the wine came from.

While small business owners have more freedom to make sure they are being talked about, trademark law can still remain tricky. Contact an experienced intellectual property attorney or help filing trademarks for your small biz.  If you’re planning to open a new business this year, we can help you file an LLC across all 50 states including Illinois and Ohio. 

Related Resources:

  • Find Intellectual Property & Copyright Lawyers Near You (FindLaw’s Lawyer Directory)7 Strangest Patent, Trademark Cases (FindLaw’s Free Enterprise)All Day I Dream About Suing: The Adidas 3 Stripe Trademark War (FindLaw’s Free Enterprise)Supreme Court: Racially Disparaging Speech Is Protected, Can Be Trademarked (FindLaw’s Courtside)

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