Brunetti's Case Revisited: Division of the Court of Appeals for Federal Circuits Dismisses Most of the Scandalous Trademark Applicant's Contentions; Case is Sent Back to Trademark Trial and Appeal Board for Further Consideration
In a recent ruling, the Court of Appeals for the Federal Circuit (CAFC) has vacated the decision made by the Trademark Trial and Appeal Board (TTAB) regarding the trademark application of fashion designer Erik Brunetti for the mark 'FUCT'.
The CAFC found fault with the TTAB's ruling, stating that it lacked sufficient findings and reasoning regarding Brunetti's arguments concerning past USPTO examiner decisions concerning similar marks. The court also highlighted 'shortcomings' in the failure-to-function analysis, but Judge Dyk, who wrote the majority opinion, noted that the f-word does not necessarily indicate the source of the proposed trademarked goods.
Judge Lourie, in his dissenting opinion, believed that the CAFC might need to help the TTAB sharpen its analysis. However, he felt that this case did not require more help from the Board to know the right answer under the law.
The CAFC stated that commonality is not the test for determining if a mark functions as a trademark. Furthermore, the court rejected Brunetti's argument that the TTAB created a new failure-to-function doctrine for marks that are too widely used.
The TTAB's decision was vacated, and the case has been remanded for further proceedings due to the lack of a viable registration standard. The TTAB did not explain what contextual information might be relevant to its rejection of Brunetti's arguments, leaving room for further discussion in the remanded proceedings.
This decision marks a significant development in the ongoing debate surrounding the registration of offensive or controversial marks as trademarks in the United States. The case is expected to have far-reaching implications for the trademark landscape, as it clarifies the standards for evaluating the functionality of a mark and the role of the TTAB in making such determinations.
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