WTF? The Board Weighs In on Failure to Function Refusals

Many trademark practitioners have noted the United States Patent and Trademark Office's recent penchant for issuing refusals to register trademarks on the ground of failure to function as a trademark. In a recent precedential decision from the Trademark Trial and Appeal Board, In re Brunetti, 2022 U.S.P.Q.2d 764 (TTAB Aug 22, 2022), the Board provided some initial guidance on how it will evaluate failure-to-function refusals going forward. Whether or not by design, the Board could not have chosen a more colorful case to designate as precedential. Brunetti involved an applicant, who was a well-known protagonist of the Office (Erik Brunetti), and his efforts to register the mark FUCK for a wide variety of goods and services. Because Brunetti failed to overcome the Office's prima facie showing that FUCK failed to function as a mark (i.e., was not perceived by the consuming public as an indicator of source), the Board ultimately denied registration.