"In a divided decision that highlights ongoing tensions around trademark law's Failure to Function doctrine, the Federal Circuit in In re Brunetti, No. 2023-1539 (Fed. Cir. Aug. 26, 2025), vacated a TTAB refusal to register the word FUCK as a trademark for various consumer goods and retail services. The court rejected most of applicant Erik Brunetti's constitutional challenges but concluded that the Board failed to articulate a coherent standard for determining when widely-used words can function as source identifiers."
"Writing for the majority, Judge Dyk criticized the Board's apparent " I know it when I see it" approach to failure-to-function refusals, while Judge Lourie dissented, arguing that substantial evidence clearly supported the Board's conclusion that the "f-word" cannot serve as a trademark for the applied-for goods. (While the majority used FUCK a total of 19 times, Judge Lourie was content with "f-word" and "f[].'. I would have used "F-Bomb.")"
Federal Circuit vacated a TTAB refusal to register the word FUCK for various consumer goods and retail services, finding the Board lacked a coherent failure-to-function standard. The court rejected most of applicant Erik Brunetti's constitutional challenges while emphasizing the need for clear criteria to determine when widely-used words can operate as source identifiers under 15 U.S.C. § 1127. Judge Dyk criticized the Board's apparent "I know it when I see it" approach. Judge Lourie dissented, contending that substantial evidence supported the Board's conclusion that the "f-word" cannot function as a trademark for the applied-for goods. The decision stresses consistency and consideration of past PTO practice.
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