Free speech: Obscene words on T-shirts land in US SC

WASHINGTON: A clothing brand with a vulgar-sounding name is about to test the US Supreme Court's commitment to free speech, international media reported.

The justices will hear arguments Monday from a lawyer for Los Angeles-based clothing designer Erik Brunetti, who was rejected when he sought federal protection for his F-word trademark. Brunetti is asking the court to strike down a century-old provision that bars the inclusion of "scandalous" and "immoral" trademarks on a US government registry.

Recent history suggests the justices will be sceptical about the prohibition. Two years ago, the court unanimously threw out a similar ban on disparaging trademarks, saying that provision violated the First Amendment. Critics of the vulgarity ban, part of the federal statute that governs trademarks, say it can't be applied consistently. In other cases the US Patent and Trademark Office allowed registration of various such words considered immoral.

"It's inherent in the nature of this," said Barton Beebe, a New York University law professor who analysed the 6.7 million trademark applications filed from 1985 through 2016. "There's no clear, administrable way to distinguish between something that's too scandalous versus not-quite-so-scandalous."

Federal registration gives trademark owners protections on top of those they already have under state law. Registration can confer exclusive rights in parts of the country where no one was already using the name or image, help owners win lawsuits, and put would-be competitors on notice that a trademark is legally protected.

The Trump administration is defending the ban. US Solicitor General Noel Francisco says Brunetti is free to use the F-label but doesn't have the right to claim the legal benefits of federal registration.

"The scandalous-marks provision does not restrict speech, but simply imposes a condition on the availability of a government benefit," Francisco argued in court papers.

Brunetti describes his clothes as "street fashion" and says his products have been sold at Urban Outfitters and small skate shops, as well as online.