WTF? The Trademark Attraction Board Weighs In on Failure to Operate Refusals

This text appeared in The Intellectual Property Strategist, an ALM/Legislation Journal Newsletters publication that gives a sensible supply of each enterprise and litigation techniques within the fast-changing space of mental property legislation, together with litigating IP rights, patent damages, venue and infringement points, inter partes evaluate, emblems on social media – and extra.

Many trademark practitioners have famous the US Patent and Trademark Workplace’s latest penchant for issuing refusals to register emblems on the bottom of failure to perform as a trademark. In a latest precedential choice from the Trademark Trial and Attraction Board, In re Brunetti, 2022 U.S.P.Q.2nd 764 (TTAB Aug 22, 2022), the Board offered some preliminary steering on the way it will consider failure-to-function refusals going ahead. Whether or not or not by design, the Board couldn’t have chosen a extra colourful case to designate as precedential. Brunetti concerned an applicant, who was a widely known protagonist of the Workplace (Erik Brunetti), and his efforts to register the mark FUCK for all kinds of products and providers. As a result of Brunetti failed to beat the Workplace’s prima facie displaying that FUCK didn’t perform as a mark (i.e., was not perceived by the consuming public as an indicator of supply), the Board in the end denied registration.

Procedural Historical past