In today’s marketplace, being noticed counts; even if you have to refer to close cousins of four letter words that are considered “immoral” or “scandalous.” In fact, some business owners (and consumers, obviously) appreciate the play on such words. After all, businesses have a First Amendment right to expressions, even to the public, of words or slogans that others may find offensive.
So when a California-based entrepreneur wanted to trademark the name “fuct” for his clothing line, the U.S. Patent and Trade Commission was apparently offended. It rejected his request based on the prohibition of vulgar word utterances and scandalous marks in the Lanham Act. After an examining attorney rejected the request, the Trademark Trial and Appeal Board ruled in similar fashion.
However, the U.S. Court of Appeals for the Federal Circuit disagreed with the USPTO and struck down the agency’s findings. Writing for the majority on the three judge panel, Circuit Judge Kimberly Moore explained that even though there are words and marks that we do not wish to be confronted with in the marketplace, the First Amendment protects private expression, even when the expression may be offensive to the general public. Additionally, the court found that the USPTO offered no substantial government interest for policing offensive speech in this manner.
The court relied heavily on a recent U.S. Supreme Court ruling where it struck down a disparagement clause that initially prevented an Asian-American rocker from trademarking “The Slants,” for his band.
Nevertheless, the story exemplifies the need for experienced legal counsel when prosecuting a trademark.