from the for-fucks-sake dept
I don’t find myself writing about how some combination of the USPTO and the court system gets things right on trademark matters very often, but I certainly did a couple of years ago in a series of posts about a fashion brand owned by Erik Brunetti. The brand was initially denied a trademark for its name, which is FUCT, over vulgarity concerns. That decision was overturned on appeal, with the courts rightly recognizing that the First Amendment trumps the puritanical sensibilities of the USPTO. It was a really good ruling overall.
Well, Brunetti wasn’t done. Given his victory in trademarking the term “FUCT,” he then attempted to get a trademark in a series of fashion categories for the work “FUCK.” After all, the courts had made it clear that civility and morality checks need not apply. However, the USPTO this time got it right and denied the trademark application as being too generic to serve as a source identifier. The USPTO’s decision included such delightfully vulgar analysis as:
The record before us establishes that the word FUCK expresses well-recognized familiar sentiments and the relevant consumers are accustomed to seeing it in widespread use, by many different sources, on the kind of goods identified in the FUCK Applications. Consequently, we find that it does not create the commercial impression of a source indicator, and does not function as a trademark to distinguish Applicant’s goods and services in commerce and indicate their source.
I completely fucking agree, USPTO people. Good for you, this was another good decision.
Unfortunately, Brunetti appealed the decision, as he had with “FUCT”, and the appeals court has decided that the USPTO had failed to provide a clear reason for its denial.
Aug 26 (Reuters) – A U.S. appeals court on Tuesday ordered the U.S. Patent and Trademark Office, opens new tab to reconsider its decision to deny an application for a trademark covering the obscenity word “fuck.” In a split 2-1 decision, the U.S. Court of Appeals for the Federal Circuit said the USPTO failed to provide clear reasoning for denying the application by streetwear designer Erik Brunetti.
The Federal Circuit said the dispute differed from Brunetti’s Supreme Court case because the USPTO’s decision was not based on the fact that the mark was obscene. But the court agreed with Brunetti that the USPTO had registered other all-purpose words as trademarks, such as “Love,” and said the agency “failed to provide sufficient precision in its rationale for why some commonplace words can serve as a mark, but others, such as FUCK, cannot.”
And, to be fair, Brunetti has something of a point here. The USPTO is not exactly a beacon of consistency when it comes to what it allows to be a registered trademark and what it does not. That’s a huge part of the problem.
But my answer to Brunetti would simply be that all he’s done is point out that there are other simple, commonplace words that should probably have their registrations rescinded. This isn’t an argument that “FUCK” should be a trademark, in other words. It’s an argument that the USPTO often times sucks at their jobs.
Because the real rebuttal from the USPTO ought need only be a showing of all the other registered trademarks that incorporate the word “fuck” into something more identifying or unique, never mind all of the other examples of clothing and fashion brands out there that use the word in one way or another. It’s ubiquitous and I’m more than a bit surprised that the appeals court needs the USPTO to be more detailed in its denial. After all, it was right to say that the word doesn’t serve as an identifier as a source of a good, because it’s used far to widely to do so.
So here’s to hoping that the USPTO cares enough to stand its ground.
Filed Under: cafc, erik brunetti, fuck, fuct, trademark, uspto
