121 Alhambra Plaza, Suite 1500 Coral Gables, FL 33134
+1 (305) 489 1901
Our office hour: Mon - Fri
09.00am - 05.00pm
In a sharply divided opinion issued on August 26, 2025, the U.S. Court of Appeals for the Federal Circuit (CAFC) vacated and remanded the Trademark Trial and Appeal Board’s (TTAB) refusal to register Erik Brunetti’s proposed trademark: the word FUCK. The decision revisits a familiar name in trademark law—Brunetti—who previously brought FUCT to the Supreme Court and won. But this time, the outcome is far less straightforward.
Back in 2019, Erik Brunetti’s fight over the trademark FUCT led to a landmark ruling in Iancu v. Brunetti. The Supreme Court struck down the Lanham Act’s ban on “immoral” or “scandalous” trademarks as unconstitutional viewpoint discrimination under the First Amendment.
The Court made clear that offensive or profane marks couldn’t be denied registration solely because of their content. That win opened the floodgates to edgier language in branding—but only to a point.
After FUCT was cleared, Brunetti tried to register the word FUCK itself as a standard character mark across various goods and services—everything from sunglasses to jewelry, backpacks, and retail store services.
This time, however, the USPTO refused registration not because the mark was “scandalous,” but because it failed to function as a trademark. In short, the government argued that FUCK is such a widely used and versatile word—expressing everything from anger to joy—that it doesn’t point to a single commercial source.
The TTAB agreed, calling the term “arguably one of the most expressive words in the English language.” Because the mark appears so commonly in expressive, ornamental, or humorous contexts (including on similar goods from third parties), the board concluded that consumers would see it as a message—not a brand.
The Federal Circuit mostly upheld the TTAB’s reasoning but sent the case back for one key reason: lack of clarity and coherent standards.
The court agreed that the term FUCK is used broadly in the marketplace and may not function as a source identifier. But it criticized the Board for failing to articulate why some ubiquitous terms like “LOVE” or even previous registrations for “FUCK” (yes, there are some) were allowed—while Brunetti’s was denied.
It warned against an “I know it when I see it” standard and emphasized the need for reasoned decision-making under the Administrative Procedure Act. In other words: if the USPTO wants to deny a registration based on widespread use, it needs clearer, more objective rules—not gut instinct.
While the FUCT case centered on content-based censorship, this case is about functionality—whether a term operates as a brand or just expressive speech. Importantly:
These differences matter because the Lanham Act requires marks to identify the source of goods. Even vulgar or shocking marks can qualify—if they function as trademarks.
The Federal Circuit didn’t say Brunetti should win—it just said the USPTO needs to explain itself better. On remand, the TTAB must clarify under what conditions a widely used term like FUCK can (or can’t) serve as a trademark. That could include considering:
For now, the door remains cracked open—but not wide. The case underscores that while free speech is protected, trademark registration still demands distinctiveness and clarity. Profanity might get past the morality bar—but it still has to function as a mark.
