Trademark Law is FUBAR and Not the Barbecue Sauce
Erik Brunetti, who founded the Los Angeles streetwear company in 1991, has fought for decades to register his brand as a trademark. In January, the U.S. Supreme Court agreed to hear him out. …“It’s not that social mores have changed. It’s more that the court is looking more skeptically at when the government can curtail particular types of speech,” said Justin Cohen, an intellectual property attorney with Thompson & Knight. Brunetti’s attorneys used Tam’s case as a precedent and won before a federal appeals court, but the government appealed. The bureaucrats said FUCT was scandalous, not disparaging, and should not be trademarked. “The federal circuit applied Tam appropriately, and the most likely outcome is that the Supreme Court would affirm the federal circuit and find that the prohibition on immoral and scandalous trademarks would be the same as disparaging trademarks and unconstitutional,” Cohen added. Registering a trademark is vitally important for a business, and Brunetti says he has suffered because other companies have sold products with the FUCT logo. He wants equal protection. “You do have some discrimination against particular trademarks, and it’s essentially a First Amendment argument because some people get more protection than others,” Cohen explained. Another outmoded section of the Lanham Act forbids companies from registering trademarks on illegal products. The provision has major implications for marijuana growers, ranging from entrepreneur Snoop Dogg to multibillion Canadian corporations to a Texas start-up helping children with epilepsy. “These brands are being developed, and companies are investing millions of dollars into their brands and products, ensuring quality, safety and all those things that go along with a company and a brand,” Cohen explained. “But they cannot obtain the protection they deserve.”