WTF? Round Two: The Federal Circuit Grants Brunetti (and Trademark Owners) a Reprieve

On Aug. 26, 2025, the Federal Circuit issued a surprisingly self-critical ruling in the long-standing dispute between Erik Brunetti and the United States Patent and Trademark Office over Brunetti’s efforts to register the term FUCK for a wide variety of goods and services. In re Brunetti, 2023-1539, 2025 WL 2446503 (Fed. Cir. Aug. 26, 2025). Although the Federal Circuit found many of Brunetti’s arguments unpersuasive, it ultimately concluded that the Board’s decision in In re Brunetti, No. 88308426, 2022 U.S.P.Q.2d 764, 2022 WL 3644783 (T.T.A.B. Aug. 22, 2022), lacked sufficient clarity and therefore vacated it for further proceedings. Although facially unremarkable, the court’s rationale for vacating that decision may not only prove to be a boon to Brunetti, it may also be highly beneficial to many trademark owners who have been forced to wrestle with failure-to-function refusals, which (as the current authors noted in “Phantom Rules: The USPTO’s Disruptive Denial of Trademark Protection in New Communicative Spaces,” 114 TMR 650, 664-666 (2024)) (Phantom Rules), have increased geometrically in recent years.
During Brunetti’s prosecution of his applications, the USPTO had originally found the term FUCK scandalous within the meaning of Section 2(a) of the Lanham Act, but it did not issue a refusal on that ground because the constitutionality of that portion of Section 2(a) was then currently under review by the U.S. Supreme Court. After the Supreme Court ruled in Iancu v. Brunetti, 588 U.S. 388(2019), that Section 2(a)’s ban on registering immoral or scandalous matter was unconstitutional because it violated the free speech provisions of the First Amendment, Brunetti’s applications were finally refused registration on the ground that FUCK did not function as a trademark or service mark to indicate the source of Brunetti’s goods or services.