We have talked a lot about the different battles that have occurred with fashion brands over trademarked logos and designs. We have yet to analyze what exactly can be protected under Trademark Law. We hypothesized what some possibilities could be for stretching Trademark Law with our analysis on Virgil Abloh’s use of quotation marks on his designs.
Recently, we discovered that vulgar words can, in fact, be trademarked. A U.S. Appeal Court ruled that “FUCT” can be trademarked. The Supreme Court previously decided that trademarks could be granted to disparaging marks, but now this will include “immoral and scandalous” trademarks, too!
Men’s fashion designer, Erik Brunetti, was originally denied the trademark from the U.S. Patent and Trademark Office for his brand. The trademark was denied since it is a variation of a vulgar word. He also used it in imagery that was misogynistic and violent. Regardless of the shock factor of his brand, the Court decided this was an unconstitutional restriction of free speech.
But, what does registering a trademark really mean? Essentially, individuals are given legal protection of the concept that they trademark. This will prevent others from copying the idea or making counterfeit goods using the concept.
So, why is it inappropriate to award someone a trademark based on the content of that idea? Regardless of how society judges the specific brand or idea that is trademarked, the fact is that the individual who would like ownership of it is the first to register that idea or brand or obtain common law rights via commercial use. So, why should we deny someone the right to protect their ideas because we feel uncomfortable engaging with what they have produced? We have no obligation to interact with the brand once it is protected.
Even further, the Court highlighted that the Patent and Trademark Office has made conflicting decisions in the past. For example, French Connection UK is allowed to protect the trademark FCUK. This may also look like a variation of a vulgar word. So why the inconsistency? We most definitely agree that it is wrong to limit someone’s ability to fully protect their ideas. Even further, it is unfair to have an arbitrary use of power to allow some seemingly vulgar words to be trademarked and not others.
While we are agreeing with the decision of the Appeal Court, it is necessary to acknowledge that this decision could open the floodgates to allow for unnecessarily vulgar language to be trademarked. Even further, this may lead to applications to trademark arbitrary concepts. It may even mean that Virgil Abloh can trademark his use of quotations, after all. Ultimately, we believe in the importance of protecting the artistic process, but we do hope that trademark protection is not abused in the future.