California Man Challenges Federal Law Refusing His ‘Immoral’ Trademark

Ashley (Kimber)

A California man whose business has an *ahem* interesting name is hoping the Supreme Court sides with him when it comes to trademarking  it.

Erik Brunetti owns “F—” clothing brand (rhymes with “duct”), and thinks it’s his First Amendment right to trademark it.

Currently, federal trademarking law allows officials to deny trademarks they consider scandalous” or “immoral.”

His is one of them.

According to Fox News: 

Brunetti called the provision an unconstitutional restriction of speech that should be struck down. He also said that the underlying process is arbitrary, and that trademarks more offensive than his could be approved depending on who handles the case.

John R. Sommer, Brunetti’s lawyer, makes the argument that an attorney from the South might find something “not nice” that wouldn’t faze a lawyer from the Bronx.

That means “you can register profanity if you’re lucky” and you get assigned a lawyer who allows it, he continued.

I may not personally like his clothing brand… but I sure in the heck don’t like the government telling him what he can and cannot name his clothing brand.

It’s quite literally his business.

The Los Angeles-based clothing brand at issue, which started in 1991, can still operate under Brunetti’s chosen name without a trademark, but doing so could be costly. For instance, Brunetti wouldn’t be able to go after counterfeiters who knock off his designs.

The government is defending the century-old trademarking provision, arguing in court documents that the law encourages trademarks that are appropriate for all audiences. The U.S. position is that the measure isn’t restricting speech, but rather declining to promote it.

I don’t really see how granting someone business protections is akin to promoting their business.

There is, however, legal precedent that may help Brunetti win his case:

Two years ago, for example, the justices unanimously invalidated a related provision of federal law that told officials not to register disparaging trademarks. In that case, an Asian-American rock band sued after the government refused to register its band name, “The Slants,” because it was seen as offensive to Asians.

If Brunetti wins, the public is unlikely to notice a whole lot of change, his lawyer said. Retailers will decide what products are appropriate for their customers, and Target and Walmart aren’t going to carry Brunetti’s brand, Sommer said.

Clearly. No one is being forced to wear the clothing. He’s just asking to be allowed to protect the business name he chose.

I have no problem with that.