Michael Best Partner Marshall Schmitt was quoted in the Westlaw Journal Intellectual Property article "Justices question if ‘Fuct’ trademark merits First Amendment protection" on April 24, 2019.
The U.S. Supreme Court on April 15 grilled attorneys representing Fuct, a streetwear firm trying to federally register its brand, and the U.S. government on the validity of the statute that bars registration of “scandalous” and “immoral” marks.
Iancu v. Brunetti, No. 18-302, oral argument held, 2019 WL 1598074 (U.S. Apr. 15, 2019).
Several justices pressed Deputy Solicitor General Malcolm L. Stewart to explain why the government’s interest in upholding Section 2(a) of the Lanham Act, 15 U.S.C.A. § 1052(a), should overcome Fuct founder Erik Brunetti’s claim that the Patent and Trademark Office’s refusal to register his trademark was unconstitutional viewpoint discrimination.
On the other side, they challenged Brunetti’s lawyer John R. Sommer, who tried to convince the justices the trademark merited protection under both the First Amendment and the trademark registration scheme.
And, as Michael Best & Friedrich partner Marshall Schmitt, who is not involved in the case, noted, “Justice Stephen Breyer worked hard to explore scientific ways to distinguish marks that affected the public in such a way to exclude them from speech that cannot be regulated.”
Justice Breyer remarked several times that studies had shown that certain words, including the word Brunetti’s Fuct mark references and America’s most notorious racial slur, have a physiological effect on the brain and body. This effect causes the hearer to retain the expression, he said.
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