FUCT at the Trademark Office – Not So Fast!

On Monday, June 24, 2019 the United States Supreme Court ruled that FUCT branded clothing was entitled to trademark protection. In so doing, the Supreme Court struck down a long standing Disparagement Clause of the Lanham Act (AKA the Trademark Act) that banned registration of proposed trademarks that are scandalous or immoral.

Hopefully you have realized by now that “FUCT” when read phonetically sounds similar to the past tense of another F-word. In the early 1990s, a couple of entrepreneurs were looking for a brand name for their clothing line that would be anti-establishment and counter culture. They developed FUCT, which founder Erik Brunetti says stands for “Friends U Can’t Trust.” Read Brunetti’s response to the ruling through his lawyer, John R. Sommer here.

The Trademark Office, relying upon the Disparagement Clause, rejected the application. This led many to believe that the entrepreneurs were Fuct. However, the entrepreneurs appealed to the Federal Circuit Court of Appeals and prevailed. The Federal Circuit ruled that although FUCT was scandalous, the Disparagement Clause barring such trademarks violated freedom of speech.

In a 6-3 decision, the Supreme Court agreed with the Federal Circuit. In an odd combination, Justice Kagan wrote the majority opinion and was joined by Justices Ginsberg, Thomas, Alito, Gorsuch and Kavanaugh, and held that the Disparagement Clause restricting registration permitted “registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts.” The majority opinion further held that the Disparagement Clause did “not draw the line at lewd, sexually explicit or profane marks” and as a result the provision was overly broad in application.

The FUCT decision continues the course the Supreme Court set in 2017, when the Court permitted a band in Oregon to register and trademark the name of a rock band “The Slants.” Although the Court has turned decisively conservative, it appears that a majority exists on the Court that values First Amendment protections over trademarks that can be interpreted as scandalous, divisive, vulgar and/or profane.

If you are interested in exploring trademarking a name and need guidance, contact Jim Shrimp at jshrimp@highswartz.com or visit High Swartz’s Intellectual Property page for more information.

Implementing a Paperless Office CLE by Joel Rosen & Jim Shrimp

Many firms dream of the day their office goes paperless, but despite all the obvious benefits, there are still a few obstacles.

Join High Swartz Litigation Attorneys Jim Shrimp and Joel Rosen for an education event held by the Independence Chapter of the Association of Legal Administrators.

This CLE-Approved program will be presented with Shelly Lawson, vice president of Bar Association programs at USI Affinity among others in the field.

Implementing a Paperless Office

DATE: Tuesday, June 18, 2019
LOCATION: 1912 Club (f/k/a Plymouth Country Club)
888 Plymouth Road
Plymouth Meeting, PA 19462
Phone: 610-272-4050
BREAKFAST: 8:30 A.M. (Program begins)
COST: $35 per person

The Mental Health Procedures Act

The Mental Health Procedures Act (MHPA), despite its limitations, presents a way for teenagers to seek treatment for mental health issues.

Up until a child reaches the age of eighteen, parents typically make all of the decisions for their children, including where they live, where they go to school and what their medical treatment is. But when it comes to mental health, Pennsylvania laws give minors over the age of fourteen significant powers to make their own decisions without the consent of their parents.

This means although a child is still technically a minor, he or she has the right to ask for mental health therapies, testing, and even hospital stays without discussion with the child’s own parents. While the law seeks to create clarity on the matter, there are legal interpretations that find families and courts on both sides of the issue.

What is the Mental Health Procedures Act?

In 2003 the Pennsylvania Senate introduced Senate Bill No. 137, also known as the Mental Health Procedures Act (MHPA) amendments. The purpose of this bill was to amend the Minors’ Consent Act, which gave minors the right to consent to medical, dental, and vision procedures without the consent of their parents, to include mental health procedures. The bill was passed in 2005, giving minors aged fourteen and older the right to consent to outpatient mental health procedures without the knowledge or consent of their parents.

On the other side, this bill doesn’t provide any way for a minor to object to their parents’ consent for outpatient treatment. For example, a parent could decide outpatient treatment was necessary and a minor can’t opt out. However, if a parent didn’t want their child to attend outpatient treatment but the minor felt it was in their best interests to go, the minor would be empowered under the MHPA to still attend.

Inpatient treatment is treated slightly differently than outpatient treatment under the Act, requiring children to be notified of the scope of the treatment and its description prior to being admitted. Should the child object or a minor seek inpatient treatment without a parent’s consent, then a hearing would be required. In the latter situation the child would remain at the facility until the hearing, which would be scheduled within 72 hours.

Protections and Limitations of the Act

The rights of a minor are often subject to debate within the court system and it can be difficult for a parent to have their child making such significant medical or mental health decisions against their wishes. To make the process clearer when it comes to mental health procedures, the MHPA looks to create rules around what decisions children fourteen or older can make for themselves. Competing with a minor’s right to make mental health decisions for him/herself are the legal custody rights and responsibilities of that minor’s parents. In cases where families are not intact, there are often custody agreements and/or court orders affording parents shared legal custody, which denotes equal decision making power over decisions like medical care. Implied in shared legal custody is the right for both parents to have the same information when making legal custody decisions on behalf of their children. However, the MHPA creates a wrinkle of uncertainty in that it does give a great deal of deference and in many instances, the ultimate decision making authority to the minor child. Additionally, there is certainly debate about whether the child has the authority to control the dissemination of his or her mental health information, even to that of one or both of his or her parents.

One application of the MPHA comes into play when there is a mental health situation where the consent of both parents is typically required, such as when to conduct tests to diagnos learning issues. When one parent decides not to consent, the child could then exercise rights under the act to move forward with the testing. This change in the power dynamic of the parent-child relationship is very different from the traditional situation and can bring arguments on both sides as to the rights of parents versus children.

The MPHA, in conjunction with HIPAA rules, also offers protections regarding the release of mental health records. Parents would ordinarily expect to be able to see their children’s medical records, even if they hadn’t initially consented to the treatment or testing. However, in order to allow children to speak openly during treatment without fear of parents’ actions or reprisal, these records are deemed confidential.

While these protections are certainly helpful there are limitations to the Act, such as the lack of required support for children who seek mental health services. Even though a child can opt to receive counseling or treatment, the parents have no obligation to provide transportation or cover the costs associated with it. Given the limited resources of children between the ages of fourteen and eighteen, it can be difficult for them to navigate this process on their own.

Application in Pennsylvania

In Pennsylvania, the Mental Health Procedures Act has provided an avenue to care for children dealing with very difficult issues. Whether the issues relate to learning disabilities, identity confusion, or any other increasingly common concerns teenagers deal with, it’s important they have a way to safely receive treatment and address their concerns. Whatever the reason for its need, the Mental Health Procedures Act provides a safe opportunity for minors over the age of fourteen to address these concerns with or without the consent of their parents.

If you have questions regarding the Mental Health Procedures Act in Pennsylvania, please contact family lawyer Melissa M. Boyd at 1-800-LAW-1914 or email mboyd@highswartz.comHigh Swartz family law attorneys have a thorough understanding how this act could affect your family.

High Swartz Welcomes Summer Associate from Rutgers Law School

High Swartz is pleased to announce that Tisha A. Sylvia has joined the firm as a 2019 Summer Associate. Tisha will be entering her second year of school at Rutgers Law School in Camden where she is a Juris Doctor Candidate. In May, Tisha was nominated as President of the Black Law Student Association, an impressive feat for a 1st year law student.

Ms. Sylvia was recently chosen to be a Legal Writing Fellow by one of her professors at Rutgers. Her duties include monitoring and assisting incoming 1Ls (1st year law students) in their analytical and structural development for their legal writing courses. As a 2L, Tisha is excited for the opportunity particularly because she recognizes how impactful upperclassmen were to her own academic development and wishes to pay it forward.

Tisha is passionate about dedicating her free time to important causes. She’s using her newfound legal acuity for good purposes. Says Ms. Sylvia: “I am first-generation; my parents are from St. Vincent and Guyana, so dedicating my time outside of class and work to volunteer with immigration legal aid organizations who support immigrants pursuing their passions is important to me."

When she isn’t dedicating her time and services Tisha explains: “I also enjoy travelling to the Caribbean and South America and always bring back paintings from local artists as my souvenir. When I travel I try to do adventurous things- the latest was zip lining in Belize and horseback riding in the El Yunque Rainforest in Puerto Rico.”

Tisha looks forward to working with High Swartz this summer as it is a general practice law firm. The knowledge she’ll receive from the diverse practice areas will give her a grasp of which areas she plans to focus on. High Swartz is excited to start working with Tisha, and guide her in real-world legal work. Welcome Tisha!