F-Bombs Away: Federal Circuit Sends Brunetti Back to TTAB to Consider its Failure to Function Doctrine

by Dennis Crouch

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.”)

The case represents Brunetti’s second major trademark dispute to reach the Federal Circuit, following his successful Supreme Court challenge in Iancu v. Brunetti, 588 U.S. 388 (2019), which invalidated the Lanham Act’s prohibition on registering “immoral or scandalous” marks. However, this case involved different trademark applications – seeking registration of FUCK (not FUCT as in the prior case) for goods including sunglasses, jewelry, backpacks, and retail services – and raised entirely different legal issues centered on the fundamental requirement that trademarks function as source identifiers under 15 U.S.C. § 1127.

Patent Alert: The Federal Circuit’s emphasis on consistency in Brunetti offers a potential parallel argument against USPTO decision-making in the patent context as well. As discussed below, the court’s reliance on Booking.com‘s mandate that the PTO “consider its ‘own past practice’ in developing a ‘comprehensive rule'” suggests that patent applicants facing inconsistent rejections may now have stronger grounds to challenge the USPTO’s rejections.