California man challenges federal law refusing 'immoral' trademark for clothing brand

A California man whose company carries a provocative name is hoping that the U.S. Supreme Court will rule against a trademark law that he says restricts his First Amendment rights.

A lawyer for Erik Brunetti, owner of the “F---” clothing brand (rhymes with "duct"), will appear before the Supreme Court on Monday to challenge a federal trademarking law that allows officials to refuse trademarks that they deem “scandalous” or “immoral.”

A distinctive brand name, seen on Brunetti's hat, has led to a legal tangle. (Associated Press)

A distinctive brand name, seen on Brunetti's hat, has led to a legal tangle. (Associated Press)

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.

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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.

But there have been workarounds in the past that could help Brunetti’s case.

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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.

The Associated Press contributed to this report.