'FUCK' Belongs to Everyone
The Trademark Trial and Appeal Board determined this week that an applicant cannot have the exclusive rights to everybody's favorite curse word.
Most trademark and patent applications can seem dry and boring. But this week, the U.S. authority on trademarks ruled that the word fuck belongs to everybody.
In 1990, Erik Brunetti started a clothing brand for skateboarders called FUCT. That nominally stood for "Friends U Can't Trust," but it was mostly chosen because phonetically, it would read as fucked. In 2011, Brunetti filed to trademark the name in an attempt to crack down on counterfeiters. Importantly, trademarks grant someone the legal right to be the only person who may profit from a particular brand, whether it's a word, phrase, or symbol.
The U.S. Patent and Trademark Office (PTO) denied Brunetti's request, a decision that was upheld by the Trademark Trial and Appeal Board (TTAB). The PTO claimed that since FUCT is "the phonetic equivalent of the word 'Fucked,' the past tense form of the verb 'fuck,'" it constitutes "vulgar, profane and scandalous slang." The ruling cited the Lanham Act, which in part forbids trademarks that could be seen as "immoral or scandalous."
In its 2019 decision in Iancu v. Brunetti, the Supreme Court overruled the PTO as well as the Lanham Act provision, determining that such a ban constituted viewpoint discrimination. The ruling built upon a case involving The Slants, a band with all Asian-American members. The band's lead singer, Simon Tam, had been denied the right to trademark its name on the basis that it could be offensive to Asian Americans. The denial even conceded that the name was intended "not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage." In Matal v. Tam (2017), the court ruled unanimously that "speech may not be banned on the ground that it expresses ideas that offend."
In 2019, before the Supreme Court ruled his way on FUCT, Brunetti doubled down and applied for the rights to the word fuck.
Over multiple applications, Brunetti sought the exclusive rights to use everyone's favorite curse word on retail goods such as jewelry, cellphone cases, and duffel bags. Earlier this week, Brunetti was again denied by the TTAB, but this time for a different reason.
In its original denial, the PTO cited the number of fuck entries in such online resources as Urban Dictionary and Wikipedia, as well as the ubiquity of fuck-branded merchandise on sites like Etsy, Threadless, and Spencer's. In upholding the denial, the TTAB cited precedent stating that "designations that are merely informational, including certain widely–used messages, fail to function as a [trade]mark and cannot be registered."
The ruling further details the word's extensive history and interchangeability: "The word 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."
But "mere commonality…is not the test." As the ruling concludes, "the function of a trademark is to identify a single source and to distinguish that seller's goods from others, and the Trademark Act does not allow registration unless a proposed mark serves this function…Applicant cannot appropriate the term exclusively to itself, denying others the ability to use it freely."
Quoting from a cited case, the ruling determines, "'It is the type of expression that should remain free for all to use.'"