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How T-Shirts Modernized Trademark Law


Some say “community standards” are “F-U-C-T” after a recent trademark case was reviewed by the Supreme Court.  Erik Brunetti, of Pennsylvania, founded his clothing company in 1990, the acronym for Friends U Can’t Trust. 

In 2011, Brunetti filed for a trademark of his business’s name. The United States Patent and Trademark Office denied his request, on the basis that the company’s name was vulgar and scandalous. The “immoral/scandalous clause” of the Lanham Act prohibits “offensive” or “vulgar” marks.

The Supreme Court (SCOTUS) heard the case of Iancu v. Brunetti, last month, and reversed The Trademark Trial and Appeal Board’s decision.  Although the company’s name is designed to be read by each letter, Justice Kagan notes “… you might read it differently and, if so, you would hardly be alone.”  The majority wrote, the brand name doesn’t matter and trademark law “discriminates on the basis of viewpoint.” While one person might find the company name vulgar and alarming, another may view it a normal part of everyday speech.  Ultimately the Lanham Act’s disparaging and offensive references were deemed overly broad and a violation of Brunetti’s right to free speech. 

Reminiscent of Roth v. United States, this case is challenging material (or words) once determined obscene in the eyes of the “average person, applying contemporary community standards.”  Although not actually quoted, Justice William Brennan’s majority opinion on obscenity has been colloquially known as “I’ll know it when I see it.” SCOTUS did not find Brunetti’s clothing line vulgar.

If “knowing it when you see it” isn’t working for you and you need help trademarking your idea, contact our experienced trademark attorney today. 

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