High Court Strikes Down Law That Barred Trademarking 'Immoral' Words

Jun 25, 2019
Originally published on June 25, 2019 8:45 am
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NOEL KING, HOST:

In the next couple of months, there will probably be a rush to get trademark protection for brand names that use obscene, vulgar, even racist language. That's because the Supreme Court struck down a longstanding federal law that bars federal trademark protection for immoral and scandalous language. As NPR's legal affairs correspondent Nina Totenberg reports, the challenge to the law was brought by the owner of a clothing line called - I'm going to let Nina take it from here.

NINA TOTENBERG, BYLINE: The line is called FUCT. You can sound it out yourself. I am not allowed to. Now, anybody can trademark a brand, but a government-approved trademark gives the holder extra protection. And in this case, the government denied a trademark for FUCT, citing a federal law that bans such protection for immoral or scandalous names.

Yesterday, the Supreme Court struck down that law by a 6-to-3 vote. An odd coalition of the court's conservative and liberal justices declared that the law violates the First Amendment guarantee of free speech because it disfavors certain ideas. An equally odd combination of three justices disagreed and would have upheld the law, applying it only to profane, vulgar and obscene brand names. And now, experts are predicting a race to trademark all kinds of sexually explicit and racist brand names. Lawyer Jacqueline Lesser specializes in trademark matters.

JACQUELINE LESSER: I do believe that this will open the door to indiscriminate applications for terms and words that many or most of us find to be really awful.

TOTENBERG: This is not the first time the Supreme Court has struggled with this dilemma, though in a somewhat different context. In the 1970s, in the pre-cable era, comedian George Carlin set out to determine what words he could say on TV and radio.

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GEORGE CARLIN: I wanted a list because nobody gives you a list. They don't give you a list. Wouldn't you think it'd be normal if they didn't want you to say something to tell you what it is?

TOTENBERG: As he put it, there were at the time lots of descriptions for forbidden words. Dirty, filthy, foul...

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CARLIN: Raunchy, rude, crude, lewd, lascivious, indecent, profane, obscene, blue, off-color.

TOTENBERG: Carlin ended up with seven famous dirty words.

(SOUNDBITE OF ARCHIVED RECORDING)

CARLIN: And all I could think of were [expletive] and [expletive].

TOTENBERG: Those were the so-called seven dirty words that the Federal Communications Commission barred from the airwaves. And in 1976, the Supreme Court upheld that list. Ironically, in yesterday's FUCT case, dissenters and at least one of the justices in the majority suggested that the trademark office should have made a similar list. Or, in the alternative, they suggested Congress should make a list like George Carlin's in a new statute.

As Chief Justice John Roberts put it in his dissent, the First Amendment protects the freedom of speech. It does not require the government to give aid and comfort to those using obscene, vulgar and profane modes of expression. Or, as Justice Samuel Alito in the majority put it in a separate opinion for himself only, our decision does not prevent Congress from adopting a new statute more focused on obscene, vulgar and profane brand names. It's not at all clear, however, that the five other justices in the majority would uphold such a statute.

So stay tuned, and in the meantime, prepare to dislike a lot of trademarks you see. They won't be your father's Nike Swoosh.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF BLOND PIANO'S "NIKES") Transcript provided by NPR, Copyright NPR.