IN 1990, Erik Brunetti (pictured) launched FUCT, an edgy casual-clothing line aimed at twenty-somethings. In 2011, to ward off counterfeiters selling shorts and hats emblazoned with the same four capital letters, Mr Brunetti applied for a trademark from the United States Patent and Trademark Office (PTO). His application was initially approved, but an official then deemed the mark unacceptable because “FUCT is the phonetic equivalent of the word ‘fucked’, the past-tense form of the verb ‘fuck’”. An appeal proved fruitless: the PTO’s appeals-board agreed that FUCT should be denied a trademark due to its “anti-social imagery,” lack of “taste” and themes “of extreme nihilism.”

Mr Brunetti’s fight to protect his brand with a trademark reached America’s highest court on April 15th. In grappling with the legal question—does a law permitting the PTO to deny protection to marks that are “immoral, deceptive or scandalous” violate the First Amendment?—the justices and lawyers studiously avoided pronouncing the word at issue. Malcolm Stewart, the government lawyer defending the law, offered a clinical description of FUCT as “the equivalent of the profane past-participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language”. Mr Stewart presented the ban on scandalous trademarks as “a valid condition on participation in a federal programme”, not a restriction that violates the freedom of speech guarantee in the First Amendment.

In contrast to a prohibition on speech, Mr Stewart said, the Lanham Act (the law at issue) represents “a good accommodation”. Referring to Federal Communications Commission v Pacifica Foundation, a ruling from 1978 involving broadcast of comedian George Carlin’s “Filthy Words”, he said “people who find the Carlin monologue funny or thought-provoking” can go to his show or buy the DVD, while the profanity will not be forced “upon anybody who finds it offensive”, Likewise, Mr Brunetti can sell his clothing bearing the FUCT logo without enlisting the imprint of the federal government.

Several justices seemed uncomfortable with this accommodation. Justice Neil Gorsuch noted “shocking numbers” of trademarks that, it seems, the PTO arbitrarily refused to honour that “look remarkably similar” to marks it granted. When Mr. Stewart began his reply, explaining why a mark spelled P-H-U-C may get the PTO’s blessing, Justice Gorsuch interrupted. “I don't want to go through the examples", he said. "I really don't want to do that.” His reponse was understandable. The briefs mention that FCUK and FWORD were granted, along with PINK TACO FAN CLUB and I BRAKE FOR COCK!, while the likes of HANDJOB (a nail salon) and FAT COCK BEER (a light lager) were not. Justice Gorsuch, Justice Ruth Bader Ginsburg and others seemed worried about the arbitrariness of government officials’ judgments of what counts as “scandalous”. It seems applicants have little idea whether their envelope-pushing marks will run afoul of the Lanham Act; it’s a “flip of the coin”, Justice Gorsuch complained.

Yet several justices were just as concerned about the implications of a potential win for Mr Brunetti. Justice Stephen Breyer suggested that because a few vulgar and racist words have a “different physiological effect on the brain”, requiring the PTO to trademark them all might inflict harm. Would a Supreme Court decision striking the “scandalous” line from the Lanham Act mean that FUCT and “the racial slur we all know about” would suddenly appear “on every bus where it’s advertised” and on “newsstands in Times Square” where “children and others see it”? No, said John Sommer, Mr Brunetti’s lawyer. Just because a brand has a trademark does not require companies to accept ads featuring the mark. Anyway, Mr Sommer added, “my client's goods are not going to be a target at Wal-Mart”. And a case from 2017, Matal v Tam, had already ruled another section of the Lanham Act unconstitutional: the bar on trademarks that are “disparaging”.

Chief Justice John Roberts and Justice Samuel Alito pressed the point. Even if FUCT doesn’t suddenly hang on racks at WalMart, the chief noted, it is “going to be on people walking down through the mall”. For parents who hope to “teach their children not to use those kinds of words”, the government’s imprimatur via the trademark is counterproductive. The registration of the mark “will facilitate its use in commerce” even if it is only sold, as FUCT is, on the internet. Justice Alito fretted that “really dirty words” would be quickly snatched up by potty-mouthed retailers seeking trademark registrations.

Judging from the oral argument, Iancu v Brunetti may be a close call. The justices tend to be protective of free speech, but the prospect of patent-office officials forced to approve vulgar or racist trademarks makes them queasy—perhaps for good reason. In his final minutes at the podium, Mr Stewart noted that in the wake of Matal, the patent office no longer rejects trademarks just because they include perceived racial slurs. But applications that include a reference to “the single-most offensive racial slur”—the n-word, presumably—have been put on hold pending the court’s ruling in Iancu. The decision should arrive by the end of June, whether to cheers or curses.