If you follow US trademark prosecution, you’ve likely noticed in recent years an uptick in failure-to-function refusals from the United States Patent and Trademark Office (USPTO). The Federal Circuit recently weighed in and its message to the Trademark Trial and Appeal Board (TTAB) is clear: You need a better standard.
In In re Brunetti, 151 F.4th 1367 (Fed. Cir. 2025), a divided panel vacated the TTAB’s refusal to register the word FUCK as a trademark for consumer goods and retail services, finding that the Board’s analysis amounted to little more than an “I know it when I see it” approach.1 The decision doesn’t eliminate the failure-to-function doctrine but it demands that the USPTO articulate coherent, predictable rules for applying it.