## Facts

- Erik Brunetti sought federal trademark registration for the mark “FUCT” for apparel.
- A USPTO examining attorney refused registration under Lanham Act § 2(a), concluding the mark comprised “immoral or scandalous matter” because it was understood as a vulgar term.
- The Trademark Trial and Appeal Board (TTAB) affirmed, finding the mark vulgar and therefore scandalous under existing USPTO practice and precedent.
- Brunetti appealed the TTAB decision to the U.S. Court of Appeals for the Federal Circuit under 15 U.S.C. § 1071(a).

## Issues

1. Whether substantial evidence supported the TTAB’s finding that “FUCT” comprises “immoral or scandalous” matter under Lanham Act § 2(a).
2. Whether the Lanham Act’s prohibition on registering “immoral or scandalous” trademarks violates the First Amendment.

## Decision

- The Federal Circuit held that substantial evidence supported the TTAB’s determination that the mark is “immoral or scandalous” under the statute as previously applied.
- The court nevertheless held the “immoral or scandalous” clause of § 2(a) facially unconstitutional under the First Amendment.
- The court reversed the TTAB’s refusal to register the mark because the statutory basis for refusal was invalid.
- A concurring judge would have construed “immoral or scandalous” narrowly (e.g., limited to obscene, vulgar, or profane marks) rather than invalidating the clause on its face.

## Legal Principles

- A trademark registration bar that discriminates based on viewpoint is unconstitutional under the First Amendment.
- The “immoral or scandalous” clause is content-based and, as applied in practice, favors marks consistent with conventional morality while disfavoring offensive or nonconforming expression.
- Federal trademark registration is not a government subsidy program and is not properly treated as a limited public forum for private speech.
- Denial of registration based on a broad offensiveness standard cannot survive First Amendment scrutiny where the statute reaches a wide range of expressive content and is not narrowly tailored to a permissible governmental interest.

## Conclusion

The Federal Circuit upheld the agency’s factual finding that “FUCT” fell within the statutory category of “immoral or scandalous” matter as historically interpreted, but it invalidated that statutory clause as unconstitutional viewpoint discrimination and reversed the refusal to register the mark.


In re Brunetti, 877 F.3d 1330 (Fed. Cir. 2017)