No FUCKs Given by the USPTO

Well, that title’s not exactly true. The United States Patent and Trademark Office (USPTO) has given a few FUCKs.

It has, for example, registered FUCK RACISM and FUCK THE ODDS for apparel, FUCK BOY for candles, FUCK JERRY for marketing and entertainment services, and FUCK THE POPULATION for various toys, bags, apparel and sporting equipment.

But not FUCK itself.

Well, sure, FUCK for snow globes, but more on that later. . . .

Erik Brunetti had to go all the way to the Supreme Court a couple of years ago to get the USPTO to give him a trademark registration for the legally scandalous term FUCT. He owns a few registrations for FUCT and uses it on a variety of goods including apparel, bags of different types, and eyeglasses.

But the USPTO has rejected his application for FUCK for essentially the same goods and services. Why did the USPTO decide to draw the line there?

The examining attorney declared that FUCK is a “commonplace, extremely versatile, and expressive term” so it “cannot serve as a designation of origin.” (The USPTO has also refused to register FUCK for various apparel as a “commonplace term” to an applicant other than Brunetti. But don’t forget the snow globes. They’re coming.)

Brunetti has appealed the denial to the Trademark Trial and Appeal Board where he’s awaiting a decision. The “sole issue on appeal” is whether FUCK cannot function as a trademark “because it is a commonplace term.”

Of course, many commonplace words and phrases are successful trademarks. There are plenty of obvious and well-known examples, like APPLE, TARGET, DAWN, and STAPLES. Those words are used in unlikely ways in relation to their goods or services, and they also have the benefit of tons of marketing that cements the trademark in consumers’ minds as a source identifier.

On the flip side, common words or phrases definitely won’t work in certain contexts as trademarks. Certainly it makes sense for the USPTO to refuse registration for DRIVE SAFELY as a trademark for cars, as it has. But it could be a fine trademark for golf clubs, fundraising services, or condoms. The TTAB recently upheld refusals to register INVENTORY AS EVIL for consulting services and HELP THE PERSECUTED for charitable fundraising services because those phrases are ubiquitous in those contexts. Fair enough. But what about INVENTORY IS EVIL hot stone massage services or HELP THE PERSECUTED beanbag chairs? Just because it’s a common phrase doesn’t mean it can’t be an excellent trademark in context.

Brunetti’s application was based on his intention to use the trademark, so the examining attorney never got to see how it was going to appear in real life. These images are from Brunetti’s specimens of use for FUCT:

Change the T to a K here and consumers could see the expletive as an indicator of source. Rather than rejecting the term entirely as a non-mark that can never be used for anything, the USPTO should give Brunetti a chance to use his mark in commerce. It should pass the mark to publication and wait for Brunetti’s specimens of use.

What about other “commonplace” terms that include FUCK? Some have been rejected . . . but SHUT THE FUCK UP is registered for legal services. That’s terrific. FUCK IT! is on the path to registration, past examination, for “noodle-based prepared meals.” Very nice. GIVE A FUCK is registered for condoms. Love it. Along those lines, the USPTO didn’t reject an application for DAMN! for computer and video games, likely to mature to registration soon. It already registered CRAP for various educational services and eyewear. BULLSHIT got through the examination stage for “plastic and cloth flags and handkerchiefs” with no mention of how commonplace the term is.

Oh, lest you think I forgot . . . . FUCK was registered for snow globes on October 13, 2020. Here’s part of the specimen of use:

I have to tell you, to me this is just a cool snow globe with the word FUCK in it. I do not see the word functioning here as a trademark for snow globes. In this case, FUCK is not a source identifier and thus not a trademark — not because it’s a “commonplace term” but because it’s, well, a funny decoration stuck inside a snow globe.