IP UPDATE

When is a word too common to trademark? Asking for a four-letter friend

by Sarah Bro | Sep 4, 2025 | Trademarks

In response to artist and entrepreneur Erik Brunetti’s ongoing efforts to register FUCK as a trademark for various goods and services, the US Court of Appeals for the Federal Circuit vacated the Trademark Trial & Appeal Board’s refusal to register the term but agreed with the Board’s position on the registrability of widely used “all-purpose words.” The Court ordered the remand because it found the Board’s reasoning insufficiently clear and lacking a coherent standard. In re Brunetti, Case No. 23-1539 (Fed. Cir. Aug. 26, 2025) (Dyk, Reyna, JJ.) (Lourie, J., dissenting).

Brunetti filed four intent-to-use applications to register FUCK as a trademark for goods, including sunglasses, jewelry, and backpacks, and services such as retail store offerings. The US Patent & Trademark Office (PTO) refused registration, asserting that the term failed to function as a trademark under Sections 1, 2, 3, and 45 of the Lanham Act and citing its widespread use as a commonplace expression conveying varied sentiments.

The Board affirmed the PTO’s decision, concluding that FUCK was “arguably one of the most expressive words in the English language” and that consumers were accustomed to seeing it used by various sources on similar goods. The Board reasoned that such ubiquity rendered the term incapable of serving as a source identifier. It rejected Brunetti’s constitutional arguments and distinguished the Supreme Court’s prior decision in Iancu v. Brunetti, which invalidated the PTO’s refusal to register the mark FUCK on grounds of immorality. Brunetti appealed.

The Federal Circuit agreed that the Board had properly considered third-party use and the expressive nature of the term. However, the Court found the Board’s decision wanting in clarity and consistency. It criticized the Board’s failure to articulate a workable standard for when “all-purpose word marks” such as FUCK can function as trademarks, especially in light of other registrations for similarly ubiquitous terms such as LOVE and even FUCK itself for snow globes and gummy candies.

The Federal Circuit emphasized that the Board must engage in reasoned decision-making under the Administrative Procedure Act and provide sufficient guidance for future cases. The Court therefore vacated the decision and remanded for further proceedings.

Despite the remand, the Federal Circuit dismissed Brunetti’s argument that the PTO had retaliated against him for his prior Supreme Court victory in Iancu v. Brunetti. Brunetti claimed that the timing of the refusals (following his successful challenge to the PTO’s immoral/scandalous bar) suggested retaliation. The Court found this argument unpersuasive, noting that Brunetti offered no evidence beyond timing, and that the Board’s analysis remained viewpoint-neutral and focused on whether the mark functioned as a source identifier.

Judge Lourie dissented, arguing that the Federal Circuit should have affirmed the Board’s refusal on grounds that the term FUCK is too ubiquitous and expressive to function as a source identifier for the goods and services in question. He emphasized that the word’s widespread use across varied emotional contexts prevents consumers from associating it with a specific brand. From Judge Lourie’s perspective, FUCK on its own [...]

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Standing: Don’t get owned by incorrect trademark ownership

by Jolie B. Schenerman | Sep 4, 2025 | Trademarks

The US Court of Appeals for the Second Circuit affirmed a district court’s dismissal of a trademark and unfair competition suit, ruling that the plaintiff did not own the asserted trademark. The Court also held that the owner of the trademark failed to ratify the action and therefore the plaintiff did not have standing to assert unfair competition claims. Ripple Analytics Inc. v. People Ctr., Inc., Case No. 24-490 (2d Cir. Aug. 26, 2025) (Park, Nathan, Perez, JJ.)

In March 2018, the US Patent & Trademark Office granted Ripple Analytics a federal trademark for RIPPLE in connection with human resources software. The following month, Ripple assigned all rights to its intellectual property to co-founder Noah Pusey via an assignment agreement. Around the same time, People Center applied to register RIPPLING for similar software. It later abandoned the application but continued to operate under the Rippling name.

Ripple sued People Center in 2020 for trademark infringement and unfair competition. During discovery, Ripple produced the assignment agreement. People Center responded by moving to amend its answer, seeking dismissal for failure to prosecute in the name of the real party in interest and requesting summary judgment.

The district court found that Pusey, not Ripple, was the real party in interest and dismissed the case because Pusey had not ratified the action under Federal Rule of Civil Procedure 17. It also dismissed the unfair competition claims for lack of standing and denied Ripple’s motion to amend the complaint as futile. Ripple appealed.

The Second Circuit affirmed the dismissal, finding that Ripple had “unambiguously” assigned all intellectual property rights, including the trademark at issue, to Pusey, making him the real party in interest. The Court emphasized that the assignment agreement transferred all of Ripple’s “claims, causes of action, and rights to sue,” regardless of when those claims arose. Ripple argued that Pusey satisfied Rule 17 by ratifying the pleadings and agreeing to be a plaintiff. The Court rejected this argument, noting that Pusey’s declaration stating his involvement in the case and strong interest in its outcome did not amount to an agreement to be bound by the suit, a requirement for ratification.

The Second Circuit determined that Ripple’s Lanham Act unfair competition claims failed because they were based on the inaccurate assertion that Ripple owned the RIPPLE mark. The Second Circuit also upheld the district court’s denial of Ripple’s motion to amend its complaint, explaining that the assignment agreement expressly barred Ripple from bringing suit.

Practice note: Before initiating trademark litigation, practitioners should conduct thorough due diligence on ownership to avoid standing issues. Defendants should consider initiating early discovery on ownership of the rights being asserted.

On repeat: Separate accrual rule doesn’t apply to continuing harm from infringing act

by Amol Parikh | Aug 28, 2025 | Copyrights

The US Court of Appeals for the First Circuit affirmed a district court’s dismissal of a copyright lawsuit as time barred, finding that the separate accrual rule does not apply to continuing harm from a single infringing act. Foss v. Eastern States Exposition, Case No. 24-1360 (1st Cir. Aug. 21, 2025) (Montecalvo, Kayatta, Aframe, JJ.)

In 2016, Spencer Brewery commissioned graphic designer Cynthia Foss to create a room-sized artwork for its exhibition space at an annual fair hosted by Eastern States Exposition. Foss retained copyright ownership and specified that the installation be displayed exclusively in person to paying patrons of the fair. During the fair, Eastern produced a marketing video featuring Foss’s work without attribution. Foss applied for copyright registration on April 19, 2017, and it was subsequently granted.

In early 2018, Foss filed a copyright infringement lawsuit against Eastern, which the district court dismissed without prejudice. Rather than amending her initial complaint, Foss filed a second suit in July 2018, which was also dismissed without prejudice. In December 2020, she submitted an amended complaint, which was again dismissed. Foss appealed, and the First Circuit reversed and remanded the case, instructing the district court to determine whether the dismissal should have claim preclusive effect because of the prejudice caused to Eastern by Foss’s failure to meet the precondition to sue.

On remand, Eastern moved to dismiss, arguing that permitting Foss to proceed would be prejudicial and that the statute of limitations barred the suit. The district court agreed on both grounds. Foss appealed.

Foss contended that the district court misinterpreted when Eastern’s alleged violations ceased for purposes of the statute of limitations and misunderstood when she was legally permitted to seek relief.

The First Circuit affirmed the dismissal, concluding that the statute of limitations barred the claim.

Foss argued that the district court failed to apply the separate accrual rule, asserting that the infringing video constituted a continuing display until it was removed. Because Eastern had not established when the video was taken down, Foss claimed that the limitations period had not begun. The First Circuit rejected this argument and clarified that continuing harm from a single infringement does not equate to separately accruing acts. The Court explained that Foss’ contention (that Eastern’s posts remained infringing displays until they were removed) reflected a theory of continuing harm stemming from a single act of infringement, rather than a series of discrete violations that would trigger the separate accrual rule.

Foss further argued that her claims accrued only after she obtained copyright registration and could legally file suit. The First Circuit dismissed this argument, citing Supreme Court precedent that infringement claims accrue when the infringing act occurs, not upon registration or the ability to sue.

Accordingly, the First Circuit concluded that Foss’s December 2020 complaint was untimely and affirmed the district court’s dismissal.

No specifics, no case? DTSA trade secret disclosure timing differs from CUTSA

by Jodi Benassi | Aug 21, 2025 | Trade Secrets

The US Court of Appeals for the Ninth Circuit found that a district court abused its discretion by striking several of the plaintiff’s trade secrets, concluding that the court improperly relied on Rule 12(f) and failed to support dismissal as a discovery sanction under Rule 37. The Court emphasized that the fact-specific question of “reasonable particularity” in Defend Trade Secrets Act (DTSA) cases is generally reserved for summary judgment or trial, not for resolution at the discovery stage. Quintara Biosciences, Inc. v. Ruifeng Biztech, Inc., et al., Case No. 23-16093 (9th Cir. Aug. 12, 2025) (VanDyke, Johnstone, JJ., Christensen, Dist. J.)

Quintara and Ruifeng are DNA sequencing analysis companies that engaged in a business arrangement. The relationship soured when Quintara alleged that Ruifeng locked Quintara out of its office, took possession of its equipment, and hired Quintara employees. Quintara sued Ruifeng under the DTSA for misappropriating nine trade secrets.

During discovery, Ruifeng moved for a protective order to pause proceedings until Quintara identified its trade secrets with reasonable particularity, as required by the California Uniform Trade Secrets Act (CUTSA), Cal. Civ. Pro. Code § 2019.210, the California version of the DTSA. The district court agreed with Ruifeng and ordered Quintara to disclose each allegedly misappropriated trade secret with reasonable particularity. Quintara filed an amended trade secret disclosure, but Ruifeng found it deficient and again moved to halt discovery. To resolve the impasse, the district court gave Ruifeng a choice: either accept the disclosure and proceed with discovery, or move to strike the disclosure, withhold discovery, and risk consequences if the motion failed. Ruifeng chose the latter and moved to strike Quintara’s trade secrets in the disclosure under Fed. R. Civ. Pro. 12(f).

Citing its broad discretion over discovery and Fed. R. Civ. Pro. 16, the district court granted Ruifeng’s motion, holding that Quintara failed to comply with § 2019.210. As a result, the court struck nine of the 11 trade secrets from the disclosure, effectively dismissing Quintara’s misappropriation claims as to those trade secrets. Quintara appealed.

The question before the Ninth Circuit was when in the litigation, and with what level of particularity, a plaintiff under the DTSA must identify its alleged trade secrets. The Court began by noting that CUTSA requires a plaintiff to identify the alleged trade secret with “reasonable particularity” before discovery begins. In contrast, the federal DTSA imposes no such requirement regarding the timing or scope of trade secret identification. Instead, DTSA cases proceed under the Federal Rules of Civil Procedure, which do not require plaintiffs to specify their trade secrets with particularity at the outset of the case. The Court explained that under the DTSA, a plaintiff must demonstrate that the claimed trade secret is described with sufficient particularity to distinguish it from general knowledge in the industry or from the specialized knowledge of those skilled in the trade. At an early stage of litigation, particularly when no discovery has yet occurred, it is not fatal to a plaintiff’s claim if the trade secret disclosure [...]

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Feel the burn: Mechanical improvement is patent eligible under § 101

by Dexter Hamilton | Aug 21, 2025 | Patents

The US Court of Appeals for the Federal Circuit reversed a district court’s partial dismissal of the plaintiff’s patent claims under 35 U.S.C. § 101, finding that the claims were not directed to an abstract idea under Alice step one. PowerBlock Holdings, Inc. v. iFit, Inc., Case No. 24-1177 (Fed. Cir. Aug. 11, 2025) (Taranto, Stoll, Scarsi, JJ.)

PowerBlock sued iFit for allegedly infringing its patent related to dumbbells. IFit moved to dismiss the claims under § 101. The district court found that the challenged claim was broadly directed to the idea of automated weight stacking, and that it purported to cover any system having a few basic components for selecting and adjusting weights, rather than describing a specific method or design for how the system actually worked. Applying the Supreme Court’s two-step framework for determining patent eligibility, the district court determined that all but one claim of the asserted patent were ineligible under § 101. PowerBlock appealed.

The Federal Circuit reversed, finding that the district court erred in its Alice step one analysis under § 101. The Court explained that the crux of the district court’s incorrect determination was that the challenged claim was directed to the abstract idea of automated weight stacking, which in turn led to misplaced preemption concerns. The Court found instead that the claim was limited to a specific implementation of a technological improvement – namely, a particular type of selectorized dumbbell featuring nested left and right weight plates, a handle, a movable selector, and an electric motor operatively connected to the selector that adjusts the weight based on user input.

Distinguishing the challenged claim from prior cases in which claims were found ineligible, the Federal Circuit emphasized that the claim was directed to an “eligible mechanical invention” and “focused on a specific mechanical improvement,” not merely an abstract or generalized concept. The Court also rejected iFit’s argument that limitations should be discounted simply because they appear in the prior art. The Court reiterated that it is inappropriate to dissect claims into old and new elements and then ignore the old when assessing eligibility under § 101. Rather, under Alice, the “step one inquiry involves consideration of the claims ‘in their entirety to ascertain whether their character as a whole is directed to excluded subject matter.’” The Court cautioned against conflating the patent eligibility inquiry under § 101 with the separate questions of novelty and nonobviousness under §§ 102 and 103.