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US justices watch their language as they consider profane trademarks

US justices watch their language as they consider profane trademarks

Reuters
WASHINGTON
US Supreme Court justices tiptoed around the offensive word at the center of a free speech case on Monday as they considered a challenge to a federal law that restricts trademarks on “immoral” and “scandalous” words and symbols.
The nine justices heard about an hour of arguments in a case involving Los Angeles-based clothing designer Erik Brunetti’s streetwear brand “FUCT,” which sounds like a profanity but is spelled differently. The F-word word in question, which government lawyer Malcolm Stewart described as “the paradigmatic profane word in our culture,” was not uttered openly in the famously decorous courtroom. Several justices signaled reservations about striking down the provision in US trademark law, which has been on the books for more than a century.
They appeared particularly concerned about limiting the government’s ability to withhold trademarks featuring the most offensive words, including racial slurs.
But other justices indicated that the law is written so broadly that it violates free speech protections under the US Constitution’s First Amendment. The court could well follow the course it took in 2017 when it struck down a similar law forbidding the registration of “disparaging” trademarks in case involving an Asian-American dance rock band called The Slants, a name trademark officials deemed offensive to Asians.
Justice Elena Kagan said the argument by President Donald Trump’s administration in defense of the law appeared to be based largely on a commitment that the government would ban only trademarks featuring the most offensive words.
“That’s a strange thing for us to do, isn’t it?” Kagan asked.
Justice Neil Gorsuch followed a similar line of questioning, wondering whether the US Patent and Trademark Office’s decisions on which trademarks to grant that feature offensive words are based on “the flip of a coin.” “I don’t want to go through the examples. I really don’t want to do that,” Gorsuch added, steering clear of any profanities.

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