August 24, 2022

FROM THE DEPARTMENT OF “DON’T PUSH YOUR LUCK”: After the infamous Slants case, where the Supreme Court held that it was unconstitutional for the U.S. Patent and Trademark Office to deny protection to potentially “disparaging” words or phrases, luggage and jewelry designer Erik Brunetti succeeded — after the Supremes decided in June of 2019 in his favor — that he had the right to register “FUCT” as a trademark.

Yesterday, the USPTO denied his application to use the word “FUCK” in the same manner:

“Erik Brunetti can’t register “FUCK” for various goods including cell phone cases, jewelry, and luggage because it does not function as a trademark, the TTAB said in a precedential decision Monday. The decision in part hinged on the fact that the word is so ubiquitous, noting “it now appears without fuss in an impressive range of cultural domains.”

Curious little monkey that I am, I went poking through the USPTO database, and found that there are more than 31 applications pending for variations on “LET’S GO BRANDON”, including my personal favorite, “LET’S GO BRANDON YOU STUPID SON OF A BITCH”; “LET’S GEAUX BRANDON”; and the sure-fire hit at the Mexican border, “VAMOS BRANDON.”

Interestingly, it appears that the USPTO is denying these applications en masse, based on the theory that:

“By October 6, 2021, a clip of the expression’s origin uploaded to Twitter had been viewed over 3.8 million times and retweeted by over 10,000 separate accounts. In other words, consumers rapidly became accustomed to seeing the phrase used by a wide range of people, companies, and/or other entities […] Because consumers are accustomed to seeing the wording “LET’S GO BRANDON” commonly used by many different sources, they would not perceive it as a mark identifying the source of goods and services, including applicant’s goods. Instead, consumers would perceive the wording “LET’S GO BRANDON” as a reference to the common expression that began on October 2, 2021.”

It’s good to know that bureaucrats in agencies other than the DOJ will Do What It Takes to protect The Big Guy.

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