Background - Applicant Erik Brunetti seeks federal registration of the clothing mark “FUCT”; the PTO refused registration under 15 U.S.C. § 1052(a) as comprising “immoral or scandalous” matter. - PTO and Board found substantial evidence that “FUCT” is a vulgar, phonetic equivalent of “fucked,” supported by dictionary/Internet definitions and marketplace use (T‑shirt imagery). - The Board affirmed the refusal; Brunetti appealed to the Federal Circuit arguing (1) insufficient evidence of vulgarity/meaning and (2) § 2(a) is unconstitutional. - The Federal Circuit panel (Moore, J.) held substantial evidence supports the Board’s finding that FUCT is vulgar and therefore unregistrable under § 2(a). - The court nevertheless concluded § 2(a)’s ban on immoral or scandalous marks is an unconstitutional content‑based restriction on speech under the First Amendment and reversed the Board’s refusal. - The court considered and rejected government defenses that registration is a government subsidy or a limited public forum, and analyzed the provision under strict scrutiny and, alternatively, Central Hudson intermediate scrutiny. ### Issues | Issue | Plaintiff's Argument (Brunetti) | Defendant's Argument (Gov't/PTO) | Held | |---|---:|---|---| | Whether substantial evidence supports Board’s finding that FUCT is vulgar/scandalous | FUCT is ambiguous or coined (e.g., “Friends yoU Can’t Trust”); marketplace evidence does not show a public perception that it is vulgar | Dictionaries, Urban Dictionary, and product images show the mark is perceived as the past tense of “fuck” and used with explicit sexual imagery | Substantial evidence supports the Board: FUCT is a phonetic twin of “fucked,” thus vulgar and scandalous; Board’s factual findings upheld | | Whether § 2(a) ban on immoral or scandalous marks is subject to First Amendment challenge | The statute is invalid as applied; Bru nnetti raises free speech challenge | PTO contends the provision is viewpoint neutral and that registration is a subsidy or limited public forum or, at most, regulates commercial speech | § 2(a) is a content‑based restriction on expressive speech; it is not saved by the subsidy or forum doctrines; strict scrutiny applies to the expressive aspects | | If Central Hudson intermediate scrutiny applies (commercial speech), does § 2(a) survive? | N/A (Brunetti emphasizes constitutional defect) | Government asserts interests in protecting public order/morals and promoting non‑scandalous commerce | Even under Central Hudson, the provision fails: government interests are insufficient or improperly tailored; the provision does not directly advance interests and is applied inconsistently | | Whether the statute can be narrowed (saved) to avoid constitutional problems | Brunetti: not applicable; relief is invalidation | Gov’t/concurrence suggested narrower constructions; concurrence would limit to obscene marks | Majority: no reasonable narrowing to confine “immoral or scandalous” to obscenity is available; provision is unconstitutional; concurrence would save statute by limiting to obscene marks | ### Key Cases Cited Matal v. Tam, 137 S. Ct. 1744 (2017) (Supreme Court: disparagement clause of § 2(a) violates First Amendment; trademarks are private speech) In re Fox, 702 F.3d 633 (Fed. Cir. 2012) (Fed. Cir. precedent on scandalous/vulgar mark analysis) In re McGinley, 660 F.2d 481 (C.C.P.A. 1981) (earlier precedent on scandalous/immoral grounds; discussed re: First Amendment implications) Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557 (1980) (intermediate‑scrutiny test for commercial speech) Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based restriction test) FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (narrow holding about broadcast indecency; distinguished in trademark context) * Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (viewpoint/content discrimination doctrine applied to commercial regulation)