TTAB Affirms Section 2(a) Scandalousness Refusal of "FOK'N HURTS" for Stun Guns
The Board, not surprisingly, affirmed a Section 2(a) refusal to register the mark FOK'N HURTS for stun guns, finding the mark to be a vulgar slang form of .... guess what? Because this is a family blog, we won't go into great detail regarding the Board's reasoning, but instead will simply hit some of the high points. In re Murchison, Serial No. 85748810 (March 24, 2014) [not precedential].
The Board observed that the Office may prove scandalousness under Section 2(a) by showing that a proposed mark is vulgar. If there is no ambiguity regarding the meaning of the term, dictionary definitions may suffice to show that the term invokes a vulgar meaning to a substantial composite of the general public.
Dictionaries routinely label the word "fuck" and "fucking" as "usually obscene" or "usually vulgar." The term "fucking" is an extremely offensive expression used to emphasize what one is saying, often to show anger. The Board also took judicial notice of several dictionary definitions of "fuck," one of which dictionaries stated that the word still remains one of the most taboo words in English. [If I may interject a personal note, I'm still offended by Big Papi's vulgar (though much ballyhooed) reference to Boston as "our f***'in city" - ed.]
The evidence showed that "fok'n" is a slang alternative for "fucking." There was no evidence that the phrase "fok'n hurts," when used in connection with stun guns, would result in anything other than a vulgar meaning.
The record included pronunciation guides indicating that the letter "o" in "fok" would be pronounced like the "o" in "love." [Wow, you learn something new every day! - ed.]. In any case, the Board noted, there is no correct pronunciation of a trademark. [What about BLACK CAT? APPLE? TTABLOG? - ed.].
Applicant Murchison complained that Examining Attorney Benji Paradewelai employed a 1927 "mind set," whereas "[o]ur country is not the same as in 1927." She contended that she was being treated unequally when her mark is compared to a number of third-party marks that are registered: PUCK-IT; FRIGGIN and design; AIRSCREW, FRIG U; FUCHS and design; FREAKIN; FRICKIN'; SCREW*D; WTF; PROSCREW; and THE F WORD. The Board pointed out, however, that none of these registered marks include the term "fok'n," and none is as close to the terms "fuck" and "fucking" as is "fok'n" in overall commercial impression. In any event, each case must be decided on its own record evidence, and the Board is not bound by actions of examining attorneys in other applications.
Finally, the Board chastised applicant for her ad hominem attacks on the examining attorney, pointing out that all parties before the Board , including those appearing pro se, are required "to conduct their business with decorum and courtesy." See Rule 2.192.
And so the Board affirmed the refusal.
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TTABlog comment: When I use the phrase "the F word" on this blog, I'm referring to fraud.
Text Copyright John L. Welch 2014.
posted by John L. Welch @ 4/25/2014
3 comments
3 Comments:
The key takeaway here? You're not ever going to improve matters by suggesting, in an Office Action response, that the Examining Attorney would be better off as a janitor. Incredible.
Only a pro se applicant would have thought she would be allowed to register this one. Too bad they couldn't sanction her for what she said to the examiner!
This opinion made me wonder whether anyone had tried to register SHITE and if they had been allowed to do so -- Looks like someone tried in 2006 for various forms of apparel and was rejected for scandalousness, and then the application was abandoned. See Serial No. 78794250. It would be interesting to see a Board opinion on that one.
Applicant overlooks FCUK in her list of questionable marks that did not trigger a scandalousness refusal. But see today's on-line edition of the UK paper The Guardian for an article titled "For FCUK's Sake - Brands Are Swearing More Than Ever."
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