This has been an interesting week in the world of fashion law, both involving trademarks.
Under The Lanham Act, the United States’ trademark statute, a trademark cannot be registered if it “consists of or comprises immoral, deceptive, or scandalous matter”.
Erik Brunetti attempted to register his clothing brand “FUCT”, which he claims it meant to be pronounced letter by letter and not as one of the most offensive curse words. His application was denied due to the assumed vulgarity of the word.
According to the opinion of the court, the PTO (Patent and Trademark Office) interprets “consists or comprises” as one term rather than literally consists OR comprises. It can have either or and still be ineligible for registration. The PTO examining attorney and the PTO’s Trademark Trial and Appeal Board both decided that FUCT was too vulgar and offensive to be registered. The Board believe that the mark conveyed “extreme misogyny, nihilism [and] violence.”
Brunetti claimed that the denial of his mark violated his first amendment rights. On June 24, the Supreme Court ruled that the denial of his application did violate his first amendment rights. Whoa.
Here are some important quotes to draw from the opinion:
“The government may not discriminate against speech based on the ideas or opinions it conveys.”
“If the “immoral or scandalous” bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine.”
“[T]he Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety.”
If you’d like to check out the full opinion, click here. Now on to kimonos.
No, Kim Kardashian does not own the word kimono. No, she cannot sue people for making kimonos. And no.. She’s not even making kimonos herself.
Trademarks are most likely to be approved when the word has nothing to do with the actual product–the more fanciful, the more likely the mark will be approved. Names that are used out of context usually work; for example, Apple computers. If Apple decided that they wanted to sell Granny Smiths, their trademark application would be denied due to the mark being too generic.
Kim did what Apple did–she’s using a generic/common word to describe something completely out of its original context. In this instance, her company’s name is Kimono but she sells shapewear.
Was it a dumb choice to name her brand after a traditional Japanese garment with centuries of deep cultural meaning? Yes. She’s not preventing anyone from selling or making kimonos, though. The only people who will get in trouble are those who use this image in commerce:
I don’t think that’ll be much of a problem, the font is terrible at best.
According to her trademark application, Kardashian can only sell products that are lingerie, shape wear, bags, and a bunch of other items that aren’t actual kimonos. So don’t fret everyone–she could’ve picked a better name, but she isn’t preventing others from making kimonos.