The Federal Circuit Court of Appeals recently decided whether the word fuck was eligible to be registered as a federal trademark. In vacating a precedential Trademark Trial and Appeal Board (the “Board”) decision that affirmed an examining attorney’s decision to deny registration on the basis that the word was too commonplace with multiple meanings, the Court determined that there is no categorical rule prohibiting its registration. The Court held that the Board improperly denied registration because it had failed to articulate a clear standard for why some commonplace words can be registered while others can’t.
The case is In re Brunetti, No. 2023-1539 (Fed. Cir. Aug. 26, 2025). The plaintiff, Erik Brunetti, applied to register FUCK as a trademark for a variety of goods and services, including jewelry, cell phone cases, luggage, and retail store services. A trademark is any distinctive word, phrase, or symbol that, in connection with certain goods or services, (i) informs consumers that the goods/services emanate from a specific source, and (ii) is not likely to be confused with another mark for related products. The examining attorney assigned to Brunetti’s application refused registration, however, citing trademark’s failure to function as a trademark doctrine. That doctrine bars registration of any mark that fails to serve as a source-identifier and distinguish the goods and services associated with it from those of a competitor.
The examiner argued that fuck is too common a word with multiple meanings to serve as a trademark. When the average consumer encounters the word in the marketplace, they won’t think it identifies any particular goods or services coming from a single producer or manufacturer. Instead, they will assume that its primary significance will be to connote one of the word’s many meanings. Brunetti appealed the examiner’s ruling to the Board, which affirmed. He then appealed to the federal appellate court.
Brunetti advanced several theories to the Court as to why the Board’s decision was wrong. The Court was unpersuaded by most of his arguments but vacated the Board’s decision anyway.
First, Brunetti argued that the Board’s decision violated his First Amendment right of free speech because it was a form of viewpoint discrimination. The Court quickly dismissed that contention by relying on the Board’s counterargument that it applies the failure to function doctrine evenhandedly, considering only whether relevant consumers perceive the applied-for mark as a trademark, regardless of the viewpoint expressed.
Next, Brunetti claimed that the Board was merely retaliating against him because of his Supreme Court victory against them a few years earlier in Iancu v. Brunetti, No. 18–302, 588 U.S. 388 (2019). In that case, Brunetti sought to register FUCT, which the Board had refused because it held the term was scandalous. At the time, there was a law that barred the registration of words that were immoral, deceptive, or scandalous. However, the Supreme Court ruled that the law, as to immoral and scandalous marks, violated the First Amendment and struck down that portion of the provision. In declining to find that the Board’s refusal to register FUCK resulted from a retaliatory motive, the Court stated that Brunetti failed to proffer any evidence to support his claim other than that the Board’s decision in the instant case came after his victory in 2019.
Next, Brunetti claimed that the Board’s decision should not stand because Iancu v. Brunetti established precedent and, thus, necessarily dictated the outcome of the current proceeding; since FUCT was registerable, so should FUCK. Not so fast, indicated the Court. It found that the two marks were fundamentally different. Fuct was a neologism with no set meaning and was neither identical in sound nor appearance to fuck, which was a common word with multiple meanings. The legal issues were also different: the constitutionality of a law that prohibits scandalous words versus the failure to function as a mark doctrine.
Brunetti argued that the Board’s refusal to register his mark was inconsistent with prior rulings where marks containing the word fuck were registered, such as FUCK in standard characters, for goods in International Class 28, “[s]now globes; [t]oy snow globes,” U.S. Trademark Registration No. 6172195 (registered Oct. 13, 2020), and by another party for goods in International Class 30, “[g]ummy candies,” U.S. Trademark Registration No. 7344225 (registered Apr. 2, 2024), after the Board’s decision in this case was published. The Board responded with its all too familiar refrain that a prior examiner’s decision does not bind it, and that each application must be decided on its own merits. It added some legalese gobbledygook for good measure, writing, “[The cited third party registrations for other single word marks, perceived in a vacuum without any contextual information, are not relevant to our determination of whether FUCK functions as a mark for the applied[-]for goods and services.”
The Court acknowledged the Board’s right not to be bound by the actions of examining attorneys who may have granted registrations incorrectly. Nonetheless, it found that the Board’s refusal to register FUCK for the goods and services cited in Brunetti’s applications lacked sufficiently explained guidance. Although the Board had proffered evidence demonstrating the ubiquity of the word fuck in common parlance with its multitude of meanings, it had not established a standard for determining why other common words with multiple meanings aren’t prohibited by the failure to function doctrine. Further, it found that the Board’s disregard of Brunetti’s third-party evidence of other FUCK-formative registrations, because the evidence purportedly lacked “context,” was unjustified, as it failed to explain what the contextual information might be. If some words are inherently incapable of being trademarks because they’re too common and polysemous, then the Board must establish a standard for why other common homonyms are registerable.
There are over 2,300 FUCK-formative marks registered with the USPTO, including FUCK CANCER, FUCK BOY, and the two marks cited above. In remanding the case back to the Board, the Court has now required the Board to formulate a standard that, when applied, justifies why those marks containing the same commonplace mark as Brunetti’s were permitted to register while his marks were not. Although, it might be the case under its as-yet-announced standard that the Board may no longer refuse to register Brunetti’s marks for failure to function as a trademark. But as to whether the word fuck can be registered as a trademark, that question has already been answered. See FUCK YES in International Class 33 for “[a]lcoholic beverages except beers,” U.S. Trademark Registration No. 7347375 (April 2, 2024).