It Is Tricky To Trademark A Vulgar Term Or Phrase

Have a scandalous mark that you wish to get protected for statutory purposes through filing an application with the U.S. Patent and Trademark Office (USPTO)?  Make sure to think long and hard before spending the time and money filing that application.

The USPTO defines scandalous material as “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation.”  When determining whether a mark is “scandalous” the USPTO looks at how the mark would be treated “not necessarily a majority, but a substantial composite of the general public, … and in the context of contemporary attitudes.”

The word “bitch” has been deemed acceptable by the USPTO with regards to past trademark applications, but more obvious vulgar words have not.  What about the phrase “cock sucker”?

On December 19, the U.S. Court of Appeals (on appeal from the USPTO) affirmed the USPTO’s refusal to register the mark “cock sucker.”  The decision was made even though the applicant was using the term for a clearly non-vulgar purpose – since 1979, the applicant used “cock sucker” to sell rooster-shaped chocolate lollipops.  Further, the target market for the lollipops were primarily fans of the University of South Carolina and Jacksonville State, which both use the gamecock as a mascot.

Webster’s Dictionary does define “cock” as a rooster and a “sucker” as a lollipop, but that argument did not convince the USPTO nor the appellate court.  The USPTO examining attorney determined that “due to the strong meaning of ‘cocksucker’ in society in general,” a “substantial composite of the general public will . . . assign the scandalous meaning to the wording/mark.”  It also said that the distinction between cocksucker (as one word) and cock sucker makes no difference.  The USPTO’s determination was not affected by the court of appeals.  Cock sucker is not a registered mark.

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