Can You Trademark the F-word? Inside In re: Brunetti and the USPTO’s New Refusal Strategy

Can You Trademark Profanity?

In 2019, the U.S. Supreme Court struck down a ban on “immoral” or “scandalous” trademarks in Iancu v. Brunetti, ruling that viewpoint-based trademark refusals violate the First Amendment. The case was brought by Erik Brunetti, a streetwear designer who had been denied registration of his brand name, FUCT.

Now, Brunetti is back in court - this time, over the actual F-word.

The Background: FUCT and the Supreme Court

Brunetti founded FUCT in the 1990s and filed a trademark application in 2011. The USPTO rejected the mark, citing a provision of the Lanham Act that barred registration of “immoral” or “scandalous” words.

Brunetti challenged the decision, and in 2019, the Supreme Court ruled in his favor. In a 6–3 decision, the Court held that the government cannot deny trademark protection based on the content or perceived offensiveness of a mark. Doing so would amount to unconstitutional viewpoint discrimination.

This landmark decision appeared to open the door for trademarks that previously would have been refused on moral grounds.

Round Two: The F-Word as a Trademark

Following his win in FUCT, Brunetti filed new applications to register the uncensored F-word (spelled out) for various goods, including phone cases, jewelry, and tote bags.

But this time, the USPTO didn’t rely on morality. Instead, it invoked the “failure-to-function” doctrine - arguing that the F-word is so widely used in everyday language that consumers wouldn’t perceive it as a brand name or source identifier. In other words, it doesn’t “function” as a trademark.

What Is the “Failure-to-Function” Doctrine?

The USPTO can refuse trademark applications if the applied-for mark doesn’t function to identify and distinguish the applicant’s goods or services. This usually applies to:

• Generic or descriptive terms

• Slogans used decoratively

• Commonplace expressions

In Brunetti’s case, the USPTO cited third-party listings on Amazon and Etsy to argue that the F-word is used ornamentally or informally across many products, not as a brand name.

But critics argue this doctrine is being weaponized as a workaround - a way to continue rejecting offensive or controversial trademarks despite the Supreme Court’s prior rulings.

Is “Failure-to-Function” Just Censorship in Disguise?

Brunetti’s legal team argues that the USPTO has shifted tactics - from citing morality to alleging “common use” - to deny marks it still finds objectionable. During oral arguments in March 2025, Federal Circuit judges appeared skeptical of the USPTO’s logic.

Judge Timothy Dyk, for example, asked how a word could be “too commonly used” to function as a mark when brands like APPLE and SHELL have been granted registration despite widespread generic use.

Observers say the lack of clear standards makes the doctrine vulnerable to subjective enforcement, especially when used to deny marks that express disfavored viewpoints.

What Happens Next?

As of July 2025, the case - In re: Brunetti, No. 23-1539 - is still pending before the U.S. Court of Appeals for the Federal Circuit. A decision is expected later this year.

The outcome could shape the boundaries of trademark law and free expression for years to come. If the court rejects the USPTO’s rationale, it may limit the agency’s ability to deny marks based on content, regardless of how they frame the refusal.

Final Thoughts

The Brunetti saga isn’t just about profanity — it’s about how far the government can go in regulating what qualifies as a trademark. For artists, designers, and entrepreneurs, the decision could affect whether edgy, expressive, or politically charged branding is legally protectable.

Whether you see it as offensive or iconic, the F-word is now at the center of a major First Amendment test in trademark law.

Need help registering your trademark - even if it’s a little controversial? Send an email to hello@outputlaw.com for advice on protecting your brand in the U.S. and Canada.

This is not legal advice.