The Volokh Conspiracy

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Free Speech

FUCKSHITUP Can't Be Trademarked


Not because it's "scandalous" or "immoral," since the Supreme Court struck down that trademark restriction on First Amendment grounds in Iancu v. Brunetti (2019); rather, because it is so "commonplace" that people would just view it as the common phrase instead of an indicator of who is manufacturing the products (here, clothing).

We find, on the basis of the record as a whole, that FUCKSHITUP "does not create
the commercial impression of a source indicator, and does not function as a trademark
to distinguish Applicant's goods … and indicate their source." "Consequently, Applicant cannot appropriate the term exclusively to [himself], denying others the ability to use it freely," including as the three-word phrase FUCK SHIT UP.

The (heavily illustrated) case is In re Gatsby, decided by the Trademark Trial and Appeal Board on June 7, in an opinion by an Administrative Trademark Judge Christopher Larkin, joined by Judge Robert Coggins. The Urban Dictionary is cited heavily, though with a cautionary note:

"[A]lthough the Board has considered definitions from it in prior cases, we 'recognize the inherent problems regarding the reliability of Urban Dictionary because it is a collaborative website that permits anyone to submit or edit a definition.'" But Applicant does not object to the trustworthiness of the Urban Dictionary definitions in the record, and in fact cites a number of them.

For a bit of absurdity, see this:

Applicant's claim that his proposed mark "can be read in multiple ways (e.g., FUCKS-HIT-UP or FU-CKS-HI-TUP)" is belied by Applicant's actual display of his proposed mark on his specimen, and the possible displays discussed immediately above, all of which highlight the presence of the three words FUCK, SHIT, and UP in the mark. Against the backdrop of the dictionary definitions and third-party uses of FUCK SHIT UP shown and discussed below, even when Applicant's proposed mark is presented in block letters as FUCKSHITUP, it is far more likely that consumers of clothing will view and understand the proposed mark as a compound word consisting of the three familiar words FUCK, SHIT, and UP than as any of the gobbledygook that Applicant claims purchasers may see instead

Judge Thomas Wellington dissented, reasoning that the mark on a clothing tag (as opposed to, say, written on the shirt itself) will indeed be seen "as identifying the source of Applicant's clothing."

For a similar case from 2021, involving the rejection of the mark "Nigga," see this post.