Can scandalous or vulgar terms identify the source of a product or service?

Can scandalous or vulgar terms identify the source of a product or service?

Can scandalous or vulgar terms identify the source of a product or service?

According to US laws NO, scandalous and/or vulgar terms are not protectable as a trademark regardless of the fact that the term may identify the source of the goods or service.

In the case of In re Fox, the Federal Circuit affirmed a ruling by the US Patent & Trademark Office (“PTO”) that COCK SUCKER is “scandalous matter” and thus cannot be registered as a trademark. Applicant used COCK SUCKER in connection with rooster-shaped chocolate lollipops since 1979. Her application to register the mark was denied by the PTO.  She argued that “cock sucker”’ is a double entendre and has the non-scandalous meaning of a “rooster lollipop”; that it is whimsical and brings a smile to the face of purchasers. However, the court did not agree and stated “We recognize that there are “whimsical” and humorous aspects to Fox’s mark, but the fact that something is funny does not mean that it cannot be “scandalous.”

The court specifically states that the applicant could continue to sell her products with the mark (luckily we have First Amendment), she just cannot expect any protection of her brand and good will from the federal laws.

The court further stated that “Congress has empowered the PTO to serve as the first line of defense against “scandalous” marks (subject to review by the Board, this court, and, if necessary, the Supreme Court), and this court has no authority to read such a power out of existence. If Congress decides that this initial screening is an unwise use of the PTO’s limited resources, it is, of course, free to amend § 1052.”  So, if you do not agree with this law call your congressman.

As a side note, it appears that the US Patent & Trademark Office did allow the registration of GAMECOCK SUCKER.

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