USPTO Still Refuses to Give a FUCK

For decades, it would have been a complete waste of your time to apply to register FUCK at the United States Patent and Trademark Office (USPTO). Same with F*CK, FXCK, F CK, FUK, FUX, FUHKIT, and the like. Images of a raised middle finger? Also entirely out of the question.

Then, in 2019, the Supreme Court struck down the statutory bar on registering “scandalous” trademarks. That decision opened the door to all sorts of fucking shit on the trademark register, in the name of free speech.

Or did it?

Erik Brunetti, the plaintiff who won at the Supreme Court and ultimately registered FUCT, then tried to register plain old FUCK. In June of 2021, an examining attorney refused Brunetti’s application for FUCK for sunglasses, cell phone cases, jewelry, a variety of types of bags, and retail services. Many of the same goods for which he’d already registered FUCT. The Trademark Trial and Appeal Board (TTAB) – essentially the appellate court of the USPTO – has agreed with that conclusion.

So scandalous trademarks are generally registrable, but FUCK isn’t? What the actual . . . heck?

As it has done with many a naughty mark even after the Supreme Court lifted the ban, the TTAB found that FUCK cannot be a source indicator. In other words, the expletive is simply not a viable trademark.

FUCK, reasoned the TTAB, is no more than a widely-used message. It conveys familiar sentiments to consumers rather than telling them where goods or services came from. (Do read on for the TTAB’s delightful description of those familiar sentiments.) And plenty of manufacturers use FUCK ornamentally on various goods, making consumers less likely to think it can be a trademark.

Thus, FUCK can never function as a trademark for Brunetti’s goods and services. It’s inherently incapable of being a source indicator, at least for ordinary consumer goods. People will always see it as an “informational sentiment” and therefore cannot see it as a brand that points out the origin of goods or services, according to the TTAB.

It’s important to note that Brunetti’s application was based on his intent to use the mark in the future. So the examining attorney and the TTAB never saw a FUCK brand watch or duffel bag. The USPTO has concluded that, no matter the context, FUCK can never be a brand.

Not so fast, USPTO. Font size and placement on a product can signal to consumers whether something is being used as a trademark. If you’re selling t-shirts with SCREW YOU in big, shiny letters across the chest, that hostile message is not being used as a trademark. I 100% agree. But there are surely ways to use SCREW YOU as a trademark. A hangtag on a purse, maybe, or “SCREW YOU brand timepieces” printed on watch packaging. Consumers know how trademarks appear on goods and packaging. They can figure it out.

The USPTO decided to grant registration to BULLSHIT for, oddly, “plastic and cloth flags and handkerchiefs,” at the intent-to-use stage. And the applicant finally used the mark and obtained a registration.

Here’s one of Brunetti’s uses of FUCT for t-shirts. It certainly looks like a trademark to me. And I genuinely don’t think morphing the T into a K will change that.

Also, how far will this decision go? Is any application for FUCK doomed to fail, or could you get a registration for charitable fundraising, a magazine on nuclear proliferation, or semiconductor chips? Would it work if you used a fancy font? And what about FUCKED? The USPTO refused to register SHIT for toilet paper on the sole ground that it’s a widely-used term that conveys an informational message. At this point, most prospective sweary applicants won’t even bother to try.

Perhaps this entire analysis was worth it, though, to be able to revel in the TTAB’s splendid homage to FUCK (citations omitted):

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. . . . FUCK is used not only to describe sexual intercourse, but as a word intensifier “to express extremes of emotion, negative and positive” (e.g., shock), to note disdain, sadness, confusion, panic, boredom, annoyance, disgust, or pleasure; to insult or offend; and to evoke other emotions. FUCK is arguably one of the most expressive words in the English language – an “all-purpose word.”

Compare that love letter to the harsh words of Justice Alito in his concurrence for the Supreme Court in the 2019 Brunetti opinion:

The term suggested by [FUCT] is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture.

The next step may be an appeal to federal court. Let’s hope the next judges will give Brunetti and consumers the benefit of the effing doubt.

Postscript: Stay tuned for an upcoming post that provides an update on federally-registered trademarks that include FUCK, SHIT, and other assorted naughtiness. For reading all the way to the bottom of this post, I’ll reward you with a preview:

  • 50 WAYS TO EAT COCK for providing a website featuring non-downloadable publications in the nature of blogs in the field of cooking and backyard chickens

And now they can proudly change that TM to an ®. 

9 thoughts on “USPTO Still Refuses to Give a FUCK

  1. John P August 31, 2022 / 4:36 pm

    There’s a splendid brand of toilet paper (from Australia, where else, but present globally) called “Who gives a crap”, which must raise the same issues – and provide a partial rebuttal. If you’ll pardon the pun!

    Like

    • Anne Gilson LaLonde August 31, 2022 / 4:39 pm

      Delightful! A memorable and fun trademark. Who knows what the USPTO would make of it. . . . .

      Like

  2. ardj August 31, 2022 / 6:12 pm

    I cannot see why you wish “fuck” to be used as a trade mark. The TIAB’s remarks seem pretty convincing to me. In particular I would point out that the proposed use for a brand of clothing, personal trinkets &c. would tend to limit the expressive range of the word to copulative conjugation – which quickly becomes tiresome when, er, done to excess (have you tried reading De Sade, Shades of Grey et al. ?)

    Like

    • Anne Gilson LaLonde September 3, 2022 / 1:27 pm

      You make excellent points, ardj. Personally, I wouldn’t use FUCK as a trademark — I think it would reduce the market for any goods it’s on because so many people would be offended. I also don’t think it would be a very strong trademark. But I do object to the USPTO rejecting the word as incapable of having trademark significance even without seeing how it would be used on a product or packaging.

      Like

      • ardj September 3, 2022 / 3:24 pm

        Not sure. I think their argument that “FUCK” would not tell consumers where the product came from seems misleading since many TMs give no such indication (tho’ maybe there is case history of that being a consideration for some marks). The bizarre passion for umlauts, it has been argued, is to give a “European” tinge, but in fact the ludicrous and unprounceable “H¨äagen-Dasz bears no relation to the desired Danish nor indeed to any other language I know: it certainly seems to have nothing to do with the Polish of the originators; and yet it is an accepted TM™.

        But I agree that “FUCK” would not be a powerful trade mark, just because of the lack of focus – which as I argued above would tend to reduce its significance to scatological humour with the humour.

        Like

  3. ardj September 3, 2022 / 3:26 pm

    Sorry: that should read “without the humour”

    Liked by 1 person

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