April 16, 2019

"If this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations?"

"There's going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive -- they're not unlimited. What's going to -- there's going to be -- those who get there first are going to be the ones who have these."

Asked Justice Alito in yesterday's oral argument in Iancu v. Brunetti (PDF), challenging the Patent and Trademark office's rejection of the trademark "Fuct."

By the way, no one in the transcript ever says "Fuct" or "fuck" or whatever other "really dirty words" might be rolling around in Justice Alito's head. They say things like: "this mark would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language."

The lawyer for the designer that uses the trademark argued that the law violates the First Amendment: "For overbreadth, I believe it's only necessary to show that it covers a substantial amount of speech. And the provision is so incredibly overbroad, because if it's taken at its word ['offensive'] -- at its -- on its face, Steak 'n Shake can't be registered because some people believe you can't -- a substantial portion of Americans believe that eating beef is immoral. And so now that's unconstitutional...."

Here's Nina Totenberg's report on the argument: "Supreme Court Dances Around The F-Word With Real Potential Financial Consequences."

59 comments:

Chuck said...

I just love your law posts, Atlhouse. Even on those exceedingly rare occasions where I disagree with you on a legal topic, you're always engaging. Kudos.

rhhardin said...

Mike Hunt would be a good brand name. Traditional radio show caller name.

rhhardin said...

Make marketing fun again.

tcrosse said...

On Msy Day all the young swains and lasses dance around the F-word.

Nonapod said...

What exactly is the Patent and Trademark office protecting us from by dissallowing the tradmarking of naughty sounding words (assuming that is indeed why it was rejected)?

mccullough said...

It’s too generic of a word for trademark protection. Phonetic spellings don’t deserve protection. Fuct Beer doesn’t deserve a trademark anymore than Cold Beer does.

hombre said...

By now, what difference does it make? Anyone who watches cable tv, goes to a movie, reads a novel or sees bumper stickers is exposed to “fuck” regularly. It’s who we have become under the tutelage of Hollywood progressives.

tim in vermont said...

I say no. Not because it’s offensive, but because it’s unoriginal. I feel the same way about band names, it seems like every time you run across and interesting word and you google it, the first thing that comes up is that it is the name of some band in Dayton, Ohio or somewhere.

stevew said...

Will they go after FCUK next, you know, because people often misread it?

Are you allowed to trademark words that are in common usage? Fuct is just an alternate spelling of a commonly used word, fucked, that matches its typical pronunciation. What is the consequence of trademarking this word? Is the holder entitled to compensation anytime it is used?

Ignorance is Bliss said...

Hey, let's be all transgressive and subvert society's norms!

Hey, why isn't society supporting my efforts by registering my trademark?!?

Fuck-em™

rhhardin said...

Fuck isn't transgressive in any case.

You have to go un-PC and use cunt (annoy both feminists and traditionally modest women) to cause a stir.

Or n-word, the reverse marketing of which happened with niger seed which rebranded itself as nyjer seed.

Ann Althouse said...

The brand "FCUK" was allowed to register that trademark.

gspencer said...

Doesn't the ruling in the recent (2017) Slants case point the way the Court will rule on this one?

For freedom.

Not Sure said...

Is Duck Tape™ fuct?

rhhardin said...

Fuct is spelt wrong.

Not Sure said...

Coming soon, a gluten-free cake mix called "I Cun't Believe It's Not Batter"

Chuck said...

There was also a protest t-shirt against country music star Toby Keith (for some political reason, as I recall): F.U.T.K.

Bay Area Guy said...

Where is George Carlin when you could really use his Constitutional advice ?

Lloyd W. Robertson said...

Lots of fun. What about the restaurant chain Jack Astor's? My son had to explain to me once that the word that you hear was the entire point of trademarking this name. Years ago in Canada there was a Human Rights Commission case, as opposed to a court case proper, about a restaurant called "Hunky Bill's." Bill himself was the owner; he grew up in Winnipeg where even friends would call him a "hunky" (vaguely hungarian/ukrainian, possibly something else), and he like the name. Was he allowed to apply this name to himself, at the risk of reinforcing negative ethnic stereotypes? For many people it is not enough to have clothes that "fit" a brand, or even to know oneself that in fact they are of a hot brand. You want to show the brand. Even with a trademark, you might have a friend look closely and say: that's not a Rolex, it's a Bolex.

Yancey Ward said...

If "FCUK" was granted a trademark, it becomes much harder to argue denying the same to "FUCT". True, the latter is a homophone to "FUCKED", but the impact is going to be the same on anyone who sees each of these, right, which was the point of the federal law banning such trademark grants- both are "offensive" in the same way.

traditionalguy said...

I listened on NPR yesterday and they mentioned that the Crap word is Trade Markable , but the S word is still 1000% forbidden.

The S word ultra prohibition that stops NPR apparently blocks Bullshit too. WTF?

Fernandinande said...

From, um ,er, Fox News:

"Rescuers asked the Good Samaritan to attempt the "broom test" with the fox to see if it was still alive, and they "were told that it didn't move but tracked them with its eyes and seemed to be breathing well."

We believe that foxes see what we want them to see.

n.n said...

It becomes a progressive parody as the nation becomes de facto multilingual and the urban dictionary is adopted as a standard with semantic spin on a whim.

Maillard Reactionary said...

rhhardin said: "Mike Hunt would be a good brand name. Traditional radio show caller name."

Or, Ben Dover.

Or, Seymour Heine.

Those would be especially good for people who want to heckle Governor Pete on the campaign trail.

Fran Waxman said...

There are no dirty words, only dirty minds.

Fernandinande said...

I want the list of words you're not supposed to yell at Hizzoner.

Ingachuck'stoothlessARM said...

why just "dirty"? What about racist, etc??
Can you trademark "Ni66er" ?
Is it 'all or nothing'?
Can you yell "FUCT !!" in a crowded theater?

n.n said...

Toxic linguistics. #HateLovesAbortion

Anonymous said...

Lot of basic confusion going on.

Trademarks are not nouns; they are adjectives.

Think of brand names--those are trademarks. Thus we get "Kleenex (circle R) tissue." Not "Kleenex." Even though we use it that way in common speech. That's why periodically Xerox Corp. would carry full page ads stating, "XEROX is not a noun." Once a trademark becomes used as a noun all the time, it loses its trademark protection. "Formica" used to be a trademark, as in "Formica counter tops." Then it became ubiquitously used as a type of counter top; it's meaning changed from an adjective to a noun and the trademarks rights were lost.

And you can't apply for a Federal TM until you are using the mark (as an adjective) in interstate commerce or plan on doing so in the near future. So a willy nilly trademarking of cool words is unlikely to happen, unless of course, the cool word is linked with a product and sold by an enterprising entrepreneur.

--Rex

tim maguire said...

Trademark protection should be limited to fanciful marks narrowly construed to apply only to directly competing products. In all other cases the first amendment should preclude the monopoly grant called trademark.

Ignorance is Bliss said...

It's clearly viewpoint discrimination that Trump was allowed to trademark Make America Great Again, but the next Democrat nominee will not be allowed to trademark Make America Fuct Again. I mean, talk about truth in advertising...

Bill Peschel said...

Copyright was equally limited. In the 19th century, literary works considered obscene were not eligible for copyright protections.

It happened to Lord Byron's "Don Juan." The government said the publisher couldn't copyright it.

Here's the fun part. Books were incredibly expensive, out of the reach of the common peasants. Pirates snapped up Byron's work and issued their own versions. They were competing with each other, so the prices were lower.

Result: More people read Lord Byron than the copyrighted authors.

effinayright said...

Nonapod said...
What exactly is the Patent and Trademark office protecting us from by dissallowing the tradmarking of naughty sounding words (assuming that is indeed why it was rejected)?
*****************

They are not "protecting" us from anything by *not* granting someone an exclusive right to exclude others from using those naughty sounding words.

Birches said...

My spouse was really fond of the restaurant called pho king.

Michael said...

I'm old, but I still somehow believe that there is or should be such a thing as common decency. I was not thrilled with FCUK, but at least there was a French Connection and a United Kingdom, and the mark had an element of wit. There is a line between that and FUCT, if only the homophone. Plus profanity loses it's potency if it is over-used or if it strays into the commercial sphere. I rarely say "fuck," but when I do I want heads to turn.

n.n said...

Naughty Naughty – a guide to Thai words with unfortunate English meanings

Fuk! Fuktong! Fukmeaw!

Basically, fuk in Thai refers to any kind of gourd or squash. Fuktong and fukmeaw are a specific gourd which are pumpkin and chayote respectively. The funniest one is fukmee which in Thai could mean something like ‘having enough gourd’. But don’t laugh too much if you know someone with this name.


Linguistic linguini.

Churchy LaFemme: said...

I am curious about how the "shit" prohibition comes and goes on radio. Back in the 90s there was a song where a female singer lists her contradictory qualities including "I'm bold but I'm chickenshit" and that got played on most stations. Now it gets cut. For a while it looked like "bullshit" was going to be sayable, but that seems to be losing out too.

Interestingly, NPR has allowed "fuck" on its airwaves at least once. There was a "Morning Edition" story about some actress who had a one woman broadway show about a dying scholor who was a world expert on the Meditations of John Donne (iirc). The audio clip from her performance was a very clear use of "fuck". I was in the car with my sister, and we kind of looked at each other like: that was the clip they decided to go with? I suspect now that they in fact used the wrong clip, but there was no apology afterward and NPR remains on the air..

Nonapod said...

They are not "protecting" us from anything by *not* granting someone an exclusive right to exclude others from using those naughty sounding words.

Well, specifically they're preventing someone from being able to sue people who put out a product that is named a particular naughty word. Not that I care that much. I just thought it was interesting. Apparently there's some sort of federal statute that says trademarks can't be rude words. I was just questioning the point of that.

Left Bank of the Charles said...

The Solicitor General seems to be arguing based on a governmental interest in protecting the public from profanity. No one seems to be making the argument to the Supreme Court that profanity should remain in the public domain.

I see how that is not a winning argument in the case of racial slurs, but it seems pretty compelling in the case of fuct. Why should anyone have an exclusive right to fuct?

That could be argued under trademark law in terms of distinctiveness, which would cover both racial slurs and profanity. Is clever spelling distinctive enough? Or does it become instantly generic? If fuct is ruled to be distinctive, what about fuctard?

The Vault Dweller said...

I for one relish the idea of a future where someone brings a lawsuit claiming that the defendant's actions have tarnished the trademark and ruined the good name of Khunt brand diet products.

Caroline said...

Is there anything more emblematic of the rotting state of our decadence than The Supremes elevating the F word by giving it constitutional significance?

mockturtle said...

The brand "FCUK" was allowed to register that trademark.

What about all those offended dyslexics?

Milwaukie guy said...

There was in Southern Ohio, I think, the Kuntz potato chip company. It sort of limited their creative advertising options. We still ate Kuntz, though.

Earnest Prole said...

If this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations?

The slippery shit-slope.

Maillard Reactionary said...

n.n-- Thank you for the amusing and informative link.

Anonymous said...

Second try, Mistress Althouse! Something there is in Blogger or Blogspot that stymieth my efforts.

This case is evidence, if more were needed, that our legal system is upgefuckt.

Here in my fair city, there's a female band called The Klitz; they have a counterpart gay punk band called The Glory Holes. I don't know if they're any good or not, but the names amuse me.

Anyone here know what the vulgar Middle English word for 'cunt' was? I'm always struck by the surprise (or shock, even better!) people express that our taboo was their everyday term.

Narr

SeanF said...

Unknown: Interestingly, NPR has allowed "fuck" on its airwaves at least once. There was a "Morning Edition" story about some actress who had a one woman broadway show about a dying scholor who was a world expert on the Meditations of John Donne (iirc). The audio clip from her performance was a very clear use of "fuck". I was in the car with my sister, and we kind of looked at each other like: that was the clip they decided to go with? I suspect now that they in fact used the wrong clip, but there was no apology afterward and NPR remains on the air..

Depends on how clear it is, too, doesn't it? Joan Jett's "Do You Wanna Touch Me (Oh Yeah)" contains the lyrics "Fuck you; fuck me; fuck everybody" in the outro. Once you know it's there, you can't not hear it, but they've been playing it uncensored on the radio for decades.

Roy Jacobsen said...

rhhardin said...
Fuct is spelt wrong.

Per Wikipedia: "Spelt (Triticum spelta; Triticum dicoccum), also known as dinkel wheat or hulled wheat, is a species of wheat cultivated since approximately 5000 BC."

Fuct has nothing to do with spelt.

Roy Jacobsen said...

I suppose you could say spelt wrong is ergot.

Known Unknown said...

He's correct. I just ran out and registered Schitt and Asswhole!

Maillard Reactionary said...

Roy Jacobsen closes out this thread in good style. rhhardin hardest hit, but is the last to know about it.

Sad!

n.n said...

Fuct is spelt wrong.

Too rungs make a rite, cleaver.

n.n said...

Phidippus:

Just one example of a linguistic landmine in a multilingual society.

Fernandinande said...

Per Wikipedia: "FUCT is a clothing brand founded in Los Angeles in 1990 by American artist and designer Erik Brunetti and partner at the time, professional skateboarder."

n.n said...

This is reminiscent of the "black hole/whore" fund raising campaign. Perhaps smearing it with some dark matter will restore the balance of feng and shui.

Levi Starks said...

They’re not keeping them from using the word, rather, they’re saying anyone can use the word. Anytime they want, for any product they want. You could say that it devalues the word, but ultimately they can still rely on the savvy of their costumer to be the judge of the genuine article.

Kirk Parker said...

Sofa King could be in trouble.

Richard Fagin said...

Justice Alito''s apparent concern about a rush to tie up all the dirty words is misplaced. Trademark registratons aren't like domain names. There has to be a good faith intent to use, or actual use of the word(s) in connection with the sale of goods or services, and these need to be clearly described in the application. The filing few is at least $275. That alone will ward off many of the possible squatters. I don't see the first amendment issue. The trademark law is based on the Commerce Power, and the ruleaking authority gives discretion to forbid registering misleading or confusing marks. Nothing in the federal trademark law prohibits using a bad word in connection with sales of goods or services, only registering it.

lalit said...

Thanks for sharing the blog, seems to be interesting and informative too.
write for us