How’s My Post? Dial 1-800-EYE-ROLL: Life in a Fuct Trademark Universe
It started as an ordinary traffic stop—waiting for the light to turn green, thoughts drifting aimlessly, idling behind a Honda Civic, but then I noticed the bumper sticker on that car:
Did I laugh? No. Did I smile? No. Was I outraged? No. Was I offended? No. Did I flash back to a blog post of mine from four years ago? How did you guess?
Make America Naughty Again: The Risk of Risqué Trademarks
Yes, back in 2018 I wrote the second of what would be several posts on what I described back then as the risk of risqué trademarks. The focus of that post was the fate of Section 2(a) of the Lanham Act, which prohibited the registration of trademarks that were immoral or scandalous and which had been cited by the Trademark Office in rejecting an application to register FUCT for apparel. I flagged the recent decision by the Federal Court of Appeals reversing that denial of a registration on the grounds that the Section 2(a) restriction violated the First Amendment.
As I discovered, the FUCT decision had already triggered a race to the Trademark Office with dozens and dozens of new applications to register trademarks containing the word “fuck” or “shit,” along with others somewhat more obscure, such as MILF. (Don’t know what that acronym stands for? That’s why the Gods, i.e., Larry Page and Sergey Brin, invented Google.)
Are We Fuct? The Supreme Court to Answer this Trademark Question
A year later, after the Supreme Court announced that it would indeed review the appellate court decision in the FUCT case, I revisited the issue in a post entitled “Are We Fuct? The Supreme Court to Answer this Trademark Question.” And I noted at the end of that post that the number of pending applications to register trademarks that include the word “fuck” had doubled since my earlier post.
But my ongoing confusion—revisited as I sat idling behind that Hondo Civic with the bumper sticker—was over the commercial potential of obtaining an X-rated trademark registration. In other words, how many people out there would want to drive around with that bumper sticker on the back of their car? Surely no parent waiting in a school carpool line. Or a member of a church choir. Or a schoolteacher. Or a doctor or member of the PTA or Boy Scout Leader. Or, well, whatever.
Well, in June of 2019 the Supreme Court did indeed affirm the Court of Appeals ruling, holding that the Lanham Act’s prohibition on registration of “immoral[ ] or scandalous” trademarks violates the First Amendment.
However, several justices expressed concern over the consequences of that ruling, as best exemplified by Justice Sotomayor’s separate opinion, which opened:
“The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U.S.C. § 1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.”
She warned of “the coming rush to register such trademarks —and the Government’s immediate powerlessness to say no.”
Current Stats for X-Rated Trademark Registration Applications
More than two years have elapsed since that warning. So what are the current stats for x-rated trademark registration applications? Your humble scribe has done the down-and-dirty research and can report as follows:
(Included in Trademark)
|# of Applications||Noteworthy Examples|
|Fuck||886||Russian Warship Go Fuck Yourself; Calm the Fuck Down; You Fuck It Up, We Fix It Up!|
|Shit||888||Shit I Wish I Knew in My Twenties; Enjoy the Shit that Matters|
|Bitch||1615||Just a Badass Bitch Getting Fit; Saving the World Is a Bitch|
Noteworthy NSFW Trademark Registrations
- The Mom to MILF Makeover® (for medical clinical services)
- 60plus MILFs® (magazine featuring mature nude female models)]
- Dick Sucking Lips® (exfoliating scrubs for cosmetic purposes)
Finally, I note that there are currently 47 trademark registrations beginning with 1-800, including 1-800-LIQUORS, 1-800-LASIC-DOC, and 1-800-ALLSTATE. Fortunately, there is no registration for the 1-800 version I saw on the rear bumper of that Honda Civic. At least not yet.
Michael A. Kahn
Mike concentrates his practice in copyright, trademark, First Amendment and media law, including libel and privacy rights. He is a widely recognized trial lawyer in the area of general commercial litigation and regularly advises clients on a range of intellectual property matters.
The content on this post does not constitute legal advice, may be geographically or time sensitive, and is for informational purposes only. Any opinions expressed in this post are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. You should not act upon the information presented herein without seeking the advice of legal counsel. The choice of a lawyer is an important decision and should not be based solely upon advertisements. Past results afford no guarantee of future results. Every case is different and must be judged on its own merits.