Free speech: Profanities are trademarks

The US Supreme Court will, in the coming days, hear a matter related to profanities being used as trademarks. This is going to test the almost absolute freedom of speech granted by the First Amendment to the US Constitution.

Extremely limited restrictions on free speech can be imposed, primarily on the grounds of obscenity, fraud, inciting lawless actions, etc. For all practical purposes, one can say, and, it has been experienced largely in the U.S., that there is complete freedom of speech, though within a legally permissible periphery, which itself is so large that most of the people do not feel even the need to go near it; transgressing it is beyond their imagination. The Constitution of India also provides almost absolute freedom of speech, however, "reasonable" restrictions can be imposed, which undoubtedly are more stringent than those in the US Thus, practically free speech in India is a little more restrictive.

There is usually a temptation for businesses to name or advertise their products in a catchy way, which sometimes crosses the threshold of decency and rationality. Now, the question arises about the legality and propriety of the action. The limit of legality is set by the legislature and ultimately determined by the judiciary. A clothing brand in the US has applied to use the acronym "Fuct" – which sounds like a profanity and is unacceptable in decent conversations – formed from the first letters of 'Friends U Can't Trust' as trademark. The American trademark law does not allow registration of scandalous and immoral names. It is quite difficult to clearly spell out as to what is scandalous and what is not. It depends on the target consumers as well as the changing social mores.

A number of words, expressions, images, thoughts, ideas, beliefs, etc. are being readily accepted – even encouraged – in the society, which hitherto were taboo and absolutely no – no. A recent advertisement by Maruti Suzuki promotes its car Vitara Brezza as 'wickedly smooth'. The word 'wicked' generally has a negative connotation, though can be used to convey the meaning mischievous or naughty also. So, the car company might be trying to convey the mischievous part, otherwise with the primary meaning of wicked it will be dangerous to woo a viewer to buy a use a car labelled as wickedly smooth. These are the new socially acceptable ways of marketing and selling products which often play on the psyche of the not-so-confident prospective consumer, who tries to emulate the ever-changing imaginary role models, who may be an amalgam of suave and wicked.

The primary role of trademarks to get a consumer instantaneously connected with the product and the manufacturer has been expanded to include, besides the name and logo, various other features like shape, colour, sound, fragrance, etc. The importance of aural similarity has, in several cases, been tested and well-established. Tata had to change the name of its newly launched car 'Zica', a few years back, when there was outbreak of zika virus, almost at the same time. Zica – a word which was coined by using the first two letters of the words zippy car – was later launched as 'Tiago', a name selected by crowdsourcing, and brought in Messi, the famous football player, as its brand ambassador.

Too much insistence to bend the unwritten norms of propriety, in most of the cases, does not bring in business success and longevity. If creating sensation and getting popularity to initially attract consumers is the plan of a businessperson, it reflects lack of confidence in the quality of the product and has often been experienced to boomerang in the long run. Legality can always be tested – in jurisdictions with rule of law, and independent and fearless judiciary – by pushing the frontier. Law, when tested in such a manner, develop at the fringes by interpretation.

The author is aprofessor at IIM-A