Conspicuous fucking consumption (with scandalous trademarks)

Christmas has come early this year for business owners who want to sell their products using any goddamned language they like. Yes, the floodgates of retail profanity have opened in 2017.

FUCT, THE SLANTS and the First Amendment

Erik Brunetti has been using the FUCT trademark for over twenty-five years to sell clothes and accessories.

He’s been trying to register that mark with the U.S. Patent and Trademark Office for almost as long. But his applications have been rejected time after time because the USPTO claimed his mark was “scandalous,” a bar that’s written into the U.S. trademark statute.

Until this year, anyone could use a scandalous trademark, but you couldn’t register them with the U.S. Patent and Trademark Office. Sure, you could sell MOTHERFUCKER hamster food or SHITSTORM advertising services, and have trademark rights, but you missed out on the extra procedural advantages that come with registration. That law had been in place for decades, even before the 1946 enactment of the current U.S. trademark law.

But the inability of Brunetti and others to register whatever they fucking choose is swiftly changing.

Those wanting to use profane marks and register them in the U.S. have an Asian-American rock band to thank. Simon Tam, a member of THE SLANTS, tried to register the band’s name as a mark, but it was denied as “disparaging,” as required by U.S. trademark law. But in June 2017, the U.S. Supreme Court ruled that the USPTO couldn’t refuse to register the mark just because the term was disparaging to Asians: “The provision offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” A handful of N-word and swastika applications, of course, ensued.

Next up in court, Erik Brunetti. And the Federal Circuit Court of Appeals took its lead from the Supreme Court, ruling that the bar on registering “scandalous” trademarks also violated the First Amendment. Barring an appeal by the USPTO in the case, scandalous marks will soon appear in the United States trademark database.

What the Hell Are People Trying to Register Now?

As of December 21, around 100 live applications request registration of trademarks that include the term FUCK.  Lots of these were filed before the Brunetti opinion and suspended by the USPTO, which was waiting for a decision in that case.

NOTE:  ITU here means “intent to use.” Businesses or individuals have to ultimately use a trademark to get rights and to get a registration, but you can still apply in the U.S. before use.  ITU applications often don’t become registrations as applicants may lose interest.

Here are some of the more interesting FUCK-related applications currently pending:

• FUCK OFF (“charitable fundraising services by means of selling goods to raise funds,” ITU)
• FUCK YOURSELF (edible underwear, artificial penises, online porn, others, ITU)
• FUCK MOUNTAIN (“t-shirts for any and all human beings,” in use since 2008)
• FUCK HAIR (hair-removing tweezers, in use since 2015)
• YOU KNOW YOU DONE FUCKED UP RIGHT? (clothing, greeting cards and computer software, in use since 1993)
• CLUSTERFUCK (beer, in use since 2017)
• EAT YOUR FUCKING VEGETABLES (“utensils, aprons, and cook books, sold as a unit,” ITU)
• EAT A SHUT THE FUCK UP SANDWICH (clothing, ITU)
• FUCK (snow globes, in use since 2005)
• FUCK (talking toys, in use since 2014)

(hats, in use since 2017)

(restaurant services, in use since 2016)

Several applications also exist for “as fuck”-formatives, including CALIENTE AS FUCK (hot sauce, in use since 2017), LOCAL AS FUCK (clothing, in use since 2016), POLITE AS FUCK (clothing, in use since 2014) and NAMASTE AS FUCK (clothing, in use since 2017).

Right now, around 100 SHIT-ty trademark applications are pending, including:

• MERRY CHRISTMAS SHITTERS FULL (Christmas tree ornaments and decorations, in use since 2015)
• SHITSCROLL (advertising, marketing and promotional services, ITU)
• BULLSHIT AND BEE STINGS (clothing, ITU)
• BULLSHIT (plastic and cloth flags and handkerchiefs, ITU)
• GETTIN’ SHITTY IN MUSIC CITY (backpacks, tote bags, wine glasses, cutting boards, clothing, ITU)
• WELCOME TO THE SHITSHOW (café and restaurant services, in use since 2014)
• THE BULLSHIT ROOM (bar, lounge and nightclub services, ITU)

Assholes aren’t as prevalent, though. Only about 15 ASSHOLE applications are pending now.  (Already registered: CROSSHOLES, SASSHOLE, GLASSHOLE, MASSHOLE).

• LIL’ RASSHOLES (children’s clothing, in use since 2017)
• THAT ASSHOLE POLECAT (clothing, ITU)
• UP HER ASSHOLE (adult entertainment, in use since 2010)

(clothing, ITU)

For fans of genitalia references, there’s also STUNTY CUNTY (clothing, ITU) and

(clothing, ITU, filed on date Brunetti decided)

What about trademarks featuring nudity and sexual innuendo? Those have been rejected as scandalous in the past, but here are a couple that are pending that may yet be registered:

(clothing, magnets, purses, ITU)

(party decorations, in use since 2016)

So, a delightful 2017 holiday season for First Amendment champions and proponents of vulgarity. Ho ho ho!