Oral argument at the U.S. Supreme Court yesterday in Iancu v. Brunetti centered on the word FUCT. Well, sort of. As one of the lawyers fussily put it, it centered on “the equivalent of the past participle form of the paradigmatic profane word in our culture.” Right. UCT.
The case is all about offensive, shocking and profane language. Yet the Justices and the parties’ attorneys pussyfooted around for an hour, steering the argument clear of anything even remotely R-rated. The attitude that there are several words so offensive they cannot be spoken aloud dominated the hearing. It may well dominate the Court’s eventual opinion.
Here’s the backdrop for all of that tiptoeing around those unspeakably naughty words.
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.
Soon we may have all sorts of COCK-formative trademarks engorging the United States Patent and Trademark Office (USPTO) database because the bar on registering scandalous trademarks is dying a slow death. But the current COCK-related trademark controversy is more complicated and, frankly, less fun than the pending application for COCK SUCKER for candy in the shape of a rooster.
Faleena Hopkins has written several self-published romance novels, among them the Cocker Brothers of Atlanta series, also called the Cocky series. These brothers, though they have cockiness and, apparently, horniness in common, have chosen diverse paths in life. Titles in the series thus include Cocky Marine, Cocky Cowboy, Cocky Genius and Cocky Senator.
After publishing a number of books in the series, Hopkins went on to obtain two federal trademark registrations for COCKY. She owns one for COCKY in no particular font for “a series of books in the field of romance” and “a series of downloadable e-books in the field of romance,” issued April 17, 2018. And another stylized mark for the same goods, issued May 1, 2018:
Armed with her registration, Hopkins appears to have used the Amazon Brand Registry to have Amazon take down several novels with “Cocky” in the title. (The ABR requires a trademark registration.) She has also sent out several cease and desist letters to individual authors with “Cocky” titles.
This has pissed the publishing community off royally. For the full shitstorm, check out #cockygate on Twitter. Just brace yourself for the vitriol. The Romance Writers of America trade association is consulting with legal counsel to figure out how to stop Hopkins, and a Moveon.org petition urging the USPTO to cancel Hopkins’ trademark registrations has almost 27,000 signatures as of this writing. Continue reading
Christmas has come early this year for business owners who want to sell their products using any goddamned language they like. Yes, the floodgates of retail profanity have opened in 2017.
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