I don’t know how the U.S. Supreme Court decides which cases to hear, and which to decline.
I do know that I would like to have been a fly on the wall when this august body discussed and then decided to hear a brand name trademark protection case.
I also know that when the case was heard on April 15, the justices declined to actually say the brand name in question.
The government’s attorney also declined, and the plaintiff’s attorney did likewise.
- Chief Justice John Roberts described the brand name as the “vulgar word at the heart of the case.”
- Justice Ruth Ginsburg said, “Suppose in the niche market that these goods are targeting, the – the name is – the word is mainstream.”
- Justice Stephen Breyer called it “the word at issue.”
- Justice Samuel Alito called it “the word your client wants to use,” and later referenced the word three times in one breath: “It’s not used to express what the word literally means. It’s just used to say, ‘I’m mad, I want to get attention.’ It’s like shouting.”
- Deputy Solicitor General Malcolm Stewart referred to the brand name as a “profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language.”
- The plaintiff’s lawyer, John R. Sommer, got the closest to saying the brand’s name, but ultimately wimped out, using the phrase “the F word.”
And it wasn’t only the Supreme Court justices et al who wimped out; so did members of the media:
The word in question:
FUCT is a clothing line created by designer Eric Brunetti, mainly hoodies, loose pants, shorts and T-shirts aimed at 20-somethings, all with the brand name prominently displayed.
Brunetti opened the line in 1990, and he’s been trying to get the brand name trademarked ever since. He says it’s an acronym for “Friends U Can’t Trust.”
Brunetti claims that other manufacturers are counterfeiting his clothes and he can’t fight them because FUCT isn’t trademarked.
And FUCT isn’t trademarked because the U.S. Patent and Trademark Office refused to grant trademark protection to the brand name.
They were “Acting unconstitutionally,” said Brunetti. And kept saying, all the way to…
The Supreme Court.
The justices went back and forth – which is in their job description – always considering “if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value,” which is also in their job description.
And they held, as one writer put it, “G-rated arguments over an R-rated word.”
But did they say FUCT in private, when they were deciding to hear the case? If that fly had been on the wall, would it have heard…
I don’t know how the Court will decide – a decision isn’t expected until summer.
I do know that in the 63-page transcript of the one-hour hearing not one participant said “FUCT.”
Which I think is…
I also know – I wimped out, too.