The fashion brand at the center of the hearing is "F—T" — an acronym for "Friends You Can't Trust." The United States Patent and Trademark Office denied the trademark in 2014 saying it was in bad taste. The owner of brand, Erik Brunetti, argued the decision denies his First Amendment rights.
Brunetti’s lawyer appeared before the Supreme Court on Monday to challenge a federal trademarking law that allows officials to refuse trademarks that they deem “scandalous” or “immoral.”
“We all know what the acronym is and we all know what it sounds like and quite frankly when it was argued in the Supreme Court yesterday, nobody used the word. The ninth justices didn't and the lawyers didn't,” Napolitano said on “Fox & Friends."
He added: “What was scandalous at the time the statute was written 75 years ago may not be scandalous now. So, that's actually what was argued yesterday.”
The government is defending the century-old trademarking provision, arguing in court documents that the law encourages trademarks that are appropriate for all audiences. The U.S. position is that the measure isn’t restricting speech, but rather declining to promote it.
“In this case, with this acronym that is offensive to some people, the trademark office said no, the trial court said no, the appellate court said yes and now the Supreme Court has it," Judge Nap said.
"Prediction, they’re going to say 'yes' because this particular court under John Roberts has expanded First Amendment protection.”
Napolitano then went on to explain the First Amendment saying: “The law can’t be specific. It can’t say this language is protected and this language is not. What does the First Amendment say? Congress shall make no law abridging the freedom of speech so the benefit of the doubt always has to be on the side of the speaker. It's the government's burden to prove there is something wrong with a speech.”
The Los Angeles-based clothing brand at issue, which started in 1991, can still operate under Brunetti’s chosen name without a trademark, but he wouldn't be able to go after counterfeiters who knock off his designs. Napolitano joked that there is a silver lining for Brunetti, even if he does not get the outcome he wants in court.
“This guy sells t-shirts and sweatshirts and running pants,” said Napolitano. “I’ll tell you what's genius about this, more free publicity than he could ever have imagined even if he loses the case. So he’s a good businessman.”
The Associated Press contributed to this report.