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Can FUCK be a Trademark?

By John DiGiacomo

Last month, the Trademark Trial and Appeal Board (TTAB) denied a collection of trademark applications trying to register the word FUCK for various goods and services. The applicant for those trademarks, Erik Brunetti, had already won a case at the United States Supreme Court that allowed him to register the mark FUCT. In Iancu v. Brunetti, 139 S. Ct. 2294 (2019), the Supreme Court found that the provision of the national trademark law, the Lanham Act, that barred registration of “immoral or scandalous” trademarks was unconstitutional, and Brunetti’s FUCT marks that were denied based on that provision could be registered. The Court’s decisions followed and relied upon the its seminal ruling in Matal v. Tam, 137 S. Ct. 1744 (2017), which held that a similar clause in the Lanham Act barring registration of disparaging trademarks was an unconstitutional restriction on free speech.

After winning his case at the Supreme Court, Brunetti returned to the United States Patent and Trademark Office (TTAB) to try and register several trademarks for the word FUCK. However, in a somewhat surprising decision, the TTAB denied his applications for a different reason. The TTAB found that the word FUCK fails to function as a trademark because it is widely used in various contexts and thus cannot function as a source identifier. The TTAB noted “[t]he evidence in this case shows that the word FUCK is no ordinary word, but rather one that has acquired a multitude of recognized meanings since its first recorded use, and whose popularity has soared over the years, particularly in recent times, transforming what was once a taboo word to be spoken in hushed tones to one that is trendy and cosmopolitan.” In Re Erik Brunetti, No. 88308426 (Aug. 22, 2022). The TTAB went on to reason that “FUCK is a message that is commonly used on the types of goods as to which Applicant wants exclusive rights to the term” and that “[p]rominent use of an applied-for-mark, as shown in the examples of record, is probative in determining whether a term or phrase would be perceived in the marketplace as a trademark or as a widely used message.” Id.

While the newsworthiness of this case comes from the applied-for-marks and the USPTO’s sidestep of the Supreme Court’s recent rulings, the more valuable takeaway from this decision for business owners and trademark holders is that the USPTO is willing to reject trademarks for commonly used words based on a failure to function argument. This means a mark need not be generic to be denied trademark registration. Indeed, Brunetti did not use FUCK generically.

This ruling makes it all the more imperative to consult a knowledgeable trademark attorney before deciding to file for federal trademark protection. Let our experienced attorneys guide you through the brand-building process by contacting us at 855-473-8474, or submitting a form here through our online referral service.

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