Saturday, January 29, 2005

USPTO Approves "UCKFAY" Trademark For Clothing

My pig-Latin is a bit "ustyray," but it seems to me that the mark UCKFAY, published for opposition on November 16, 2004, fits into the same scandalous pigeonhole as A**HOLE. Readers will recall that A**HOLE was deemed vulgar by the TTAB in the recent In re Zaharoni decision, discussed here by the TTABlog. [For those who are not pig-Latin literate, lessons may be found here and an English-to-Pig Latin translator here.]

The UCKFAY application (Serial No. 78366377) was filed on February 11, 2004, based on the applicant's intent-to-use the mark for various clothing items. It sailed through PTO examination. A check of the TTABVUE database indicates that an opposition has not been filed, and so we can expect a Notice of Allowance to issue soon. The PTO will have another opportunity to examine the application when and if a Declaration of Use if filed. Generally, such a "second examination" will not re-visit issues that could have been raised in the initial examination, but in cases of "clear error" -- i.e., "an error that, if not corrected, would result in issuance of a registration in violation of the Act" -- the PTO may issue new requirements or refusals. See Trademark Manual of Examining Procedure, Section 1109.08. It remains to be seen whether UCKFAY will survive a "second examination."

The same applicant, an individual residing in New Jersey, owns 32 other pending applications for what might loosely be called a "family" of pig-Latin marks. Included are more marks in the UCKFAY mold: ITCHBAY, UCKSAY, ODAY EMAY (that's a tricky one), ARDHAY, ASSWAY, ICKLAY, ICKDAY, and EXSAY -- all of which have been published for opposition. Some of the marks are rather innocuous (e.g., OOLCAY, UPIDSTAY, UMBDAY), some rather amusing (IGPAY, ATINLAY).

The identified goods are ordinary clothing items like suits, ties, shirts, and tuxedos. [Maybe it's just me, but I can't see someone wanting to wear an UCKFAY brand tuxedo.]

Perhaps this applicant is cleverly exploiting a hole in the doctrine of foreign equivalents. Does that doctrine apply to pig-Latin? I hope a few law students read this, because that's definitely a topic for a third-year paper.


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