Kink.com Appeals USPTO Refusal to Register “Immoral and Scandalous” Trademarks

Orlando Weekly published an article chronicling Kink.com‘s attempts to secure registration of several of its trademarks, such as fuckingmachines and whippedass.

Trademark registration is a standard practice for any business that wants to protect its interests. However, Kink.com and others who have attempted register trademarks that contain a “dirty word” have been told by the United States Patent and Trademark Office (“USPTO”) that “Registration is refused because the proposed mark consists of or comprises immoral or scandalous matter.”

Kink.com is appealing the board’s rejections, claiming that they are unconstitutional and unsupported by the evidence provided by the government. Kink is determined to prove to the Courts and Trademark Office that while “fuck” might raise an eyebrow in polite conversation, in modern times, “fuck” does not rise to the level of “scandalousness” claimed by the USPTO.

Under the legal standard, the mark itself must be “shocking,” and “calling out for condemnation.” Kink has argued through that this particular word’s prevalence in common conversation and popular culture discredits the argument that the American marketplace, and especially the adult internet marketplace, would be “shocked” by this registration. The previous appeal for whippedass was successfully argued on similar grounds.

In addition, to this statutory interpretation argument, Kink argues that, more importantly, trademarks are commercial speech – and commercial speech is subject to First Amendment protection. Under the First Amendment, the USPTO should not be able to deny a benefit that is available to other businesses, solely based upon one person’s determination that the content of the speech is “immoral.” If the First Amendment means anything, it means that the government should remain neutral in matters of free expression and morality. This is as much a case about the First Amendment rights of adult businesses as it is about a mere commercial benefit.

The Orlando Weekly Article is here.

Kink’s appeal of the USPTO’s rejection of the mark is available at this link.

Trademark Guy Blog posting on Section 2(a) refusals.

An interesting article on a tangential issue from Time Magazine.

Looks like the issue made boingboing.

I don’t usually comment on opposing counsel. However, I will when I have something nice to say.

I believe that the portrayal of my opposing counsel in this case, Michael Engel, not as positive as he deserves. I don’t fault the journalist for it, I have it easy — I have the luxury of arguing the First Amendment side of the argument. Engel has to defend policies and decisions that were made well above his head. Nobody should fault him for that. He’s just doing his job, and he is doing it honorably, ethically, and professionally. In fact, he has gone well beyond what is required of him to be helpful and courteous to me in this case.

I usually don’t censor comments, but there was one proposed that spoke ill of him, and I will not approve any comments that do so. There can be none made that would be fair or deserved.

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