The U.S. Patent and Trademark Office has been refusing plenty of applications for marks containing curse words on the dubious ground that they are too commonplace to serve as trademarks. Ever. As I explained in my last post, these applications include SHUT THE FUCK UP legal services, KEEP FUCKING GOING jewelry, and YOU’RE AWESOME KEEP THAT SHIT UP dinnerware and oven mitts.
After that shocking exposé, we’ve earned a sweary tour through those scandalous marks that have made it onto the federal register. Applying to register these before the Supreme Court eliminated the ban in 2019 would have been a complete waste of time and money. But they have now officially penetrated the federal database. I’m not including the multiple asterisked-for-your-protection marks now on the register, though those too wouldn’t have made it through during the heyday of the scandalousness ban.
Let’s start with the shitstorm. Continue reading
This post set out to be a fun romp through the naughty marks in the U.S. federal trademark register. Don’t worry, that post is still forthcoming . . . but in the meantime I’ve learned about a distressing trend that’s stopping lots of sweary marks from attaining federal registration.
Despite having been instructed by the Supreme Court that it can no longer refuse trademark applications on the ground that the contents are “scandalous,” the U.S. Patent and Trademark Office (USPTO) won’t commit wholeheartedly. It’s relying on a shaky rationale to justify rejecting a variety of recently-filed FUCK- and SHIT-formative marks, like GOOD SHIT, APESHIT and YOU FUCKING GOT THIS. Continue reading
You’re in luck if you sell FUCK ME formalwear, own the NO SHIT diner, or produce HEY ASSHOLE pepper spray. You’ll soon be able to head over to the website of the United States Patent and Trademark Office (USPTO) and register those trademarks. Because the U.S. Supreme Court has just ruled in the Brunetti case that the statutory bars on registering “scandalous” and “immoral” trademarks are unconstitutional.
But you better move quickly . . . A passel of the Justices is not pleased with this outcome. (The moral panic during the oral argument was sort of a red flag.) Continue reading
Following hard upon Iva Cheung’s delicious food-based ethnic slurs post, we turn to disparaging and sweary food truck trademarks.
First, a recent and timely controversy over food service-related branding. Local officials in Keene, New Hampshire were dismayed when signage popped up for a new Vietnamese restaurant, PHO KEENE GREAT.
In a previous post, I explained how the Supreme Court of the United States vacated the provision in the Lanham Act — which governs American trademark law — prohibiting trademarks that “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Such trademarks, the Court determined, express viewpoints, and the First Amendment protects speech from viewpoint discrimination. In a concurring opinion, Justice Anthony Kennedy acknowledged that Matal v. Tam, the case in question, did “not present the question of how other provisions of the Lanham Act should be analyzed under the First Amendment,” but if the Court sticks to its rationale in that case, it will have to extend First Amendment protection to all kinds of strong language, not just slurs but profanity and obscenity, too. I could call my pro-profanity nonprofit advocacy group Express Your Damned Self® and register the name as a trademark because Fuck the Lanham Act® — that’s our slogan— and there’s not a damned thing you or the Patent and Trademark Office could do about it. Continue reading