Justices Divided Over Vulgar Trademark Protection

to trademark, calling it scandalous and immoral. It's a four letter word that rhymes with duct. The designer says, the government is violating his First Amendment rights. Joining me as Greg Store, Bloomberg News Supreme Court reporter who was at the arguments, I have to ask you, Greg, did anyone have to cover their ears during the oral arguments? Nobody had to cover their ears, June. The justices have done

this sort of thing before. They're pretty good at and the lawyers as well at letting everybody know what they're talking about without actually saying the word. They didn't even phonetically say the name of the trade market issue here, which is spelled f uct. They just all assumed they knew what they were talking about, all right. Well, recent Supreme Court case law suggests that the designer, Eric Brunetti, is favored to win. Did the justices questions indicate which

way they were leaning? It was a lot closer than I might have guests going in, you're right. A couple of years ago, the Court heard a case very similar to this involving disparaging trademarks. That was the case involving a rock band known as the Slants. And you might have thought going in that that these limits on vulgar

and lew trademarks would suffer the same fate. But a number of justices seem like they wanted to leave some room for the government not to have to give its effectively endorsement to a handful of words that we all know and that most people think are highly offensive. So explain the core of the arguments by the designer and the government. The core of the argument. There's several levels to it. Probably the level on which Mr Brunetti has the best chance to win is that this provision is

so vague it can't be applied consistently. So in the briefs there are a lot of examples of similar uses of the F word in various forms, for example spelled fcu K, where the Patent and Trademark Office has allowed

federal registration of that trademark. And the argument is, and it got some headway, made some headway with some of the justices like Neil Gorsage and Ruth Bader Ginsburg, that wherever you draw the line for this sort of stuff, it's it's going to be somewhat arbitrary, and it's going to depend on an individual trademark examiners subjective sense of

what is too offensive. So, since you mentioned Justice Neil Gorsch and Justice Ruth Bader Ginsburg in the same sentence, I'll ask you, did it seem then as if the justices were not divided down partisan lines, It did not feel like that usual ideological divide that we see a lot. No. In fact, those are the two Justices Ginsburg and Gorst, who, based on their questions, seemed most likely to strike down the band. Of course, as as I said, was really

hitting on that consistency issue. Justice Cavanough asked about that as well, and Justice Ginsburg asked a couple of questions about whether this term was really as offensive as everybody thought it was, and she talked about Mr Brunetti's proposing line is what he calls street fashion, and she suggested that in the niche market that might be buying his clothing, this word was not all that offensive. That's why they

call her the notorious RBG. So what struck me before the arguments as strange was the U. S. Court of Appeals for the Federal Circuit ruled in the designer's favor, and they sighted the Supreme Court's decision that you talked about in the Slants case striking down the disparaging provision. So I was wondering why the Court took this case

up unless they're going to change something. Well, the Court as a general matter, does not like to have a Federal Appeals have the last words striking down a statute or a statutory provision. That is something the Supreme Court

will almost always agree to do itself. So it was entirely possible the court before today, it seemed like the Court maybe just took this case because it just wanted to affirm what what the lower court had done and said, you know, hey, this is just like the disparaging trademarks. But as we discussed, as the argument went on, it became clear that at least some of the justices weren't convinced that it didn't seem like they were convinced that the lower court got it right. So what kind of

standard could they suggest here? That's going to be the challenge now. Justice Brier tried to create a line that could be drawn. He seems to be somebody who might ultimately vote to to uphold this statute. But but what he was suggesting was that there are some words that he said, six or seven, that have a unique ability to create a physiological response in people that you lodge in a different part of their brain, that people remember the words and the reaction when they heard or saw

the word. And yes, he suggested that it was suggested that maybe there's some sort of line that could be

drawn around the handful of words. And Chief Justice John Roberts suggested he was on that side too, and and he was being driven in part by this notion that if the Court were to strike down the statute, it's not clear that the Trademark Office would be able to prohibit any federal registration of trademarks, even for things that are obscene, which is the kind of which is something that is so extreme that the Supreme Courts has said in other context doesn't deserve any speech protections at all.

So there were some concerns that the federal government would be unable to police any sort of offensive trademarks. Today agree on what those six or seven words were. They didn't say, they're out loud. But here's one thing that was really interesting to meet June is that, you know, the earlier case was about disparaging trademarks, and as I said, that was a rock band known as the Slants now they're an Asian American band, and they said that the

name of their band was being used ironically. I think it all fought that that included things like racial slurs, that that was the kind of thing that the court considered to be viewpoint discrimination and you couldn't discriminate on the basis of viewpoint. But the government lawyer, Malcolm Stewart,

said that there was one word in particular. Didn't say what it was, but we can imagine what it is, an especially bad racial slur that the government that the Trademark Office is basically waiting on that they really don't want to approve applications that use that one particular word, and he is suggesting that that one word might be more like uh vulgar expressions rather than something that is purely disparaging trademark and therefore viewpoint discrimination. Thanks for listening

to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg