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Kink Appeals USPTO's Refusal to Register its Trademarks

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Orlando Weekly published an article today 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 to 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.

Additionally, Kink has argued through its attorney, Marc J. Randazza, that 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 it 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 like a trademark.

Kink.com's appeal of the USPTO's rejection of the mark for fuckingmachines is available here.

Comments (4) | Posted: June 6, 2007

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06/06/2007 6:27 PM BoojiBoy says:

that is a hella weak argument

06/07/2007 4:18 AM stuntman_ronmexico says:

I can certainly see why they made you editor of the law review, Booji. After reading your incisive analysis, I'm sure Randazza will be ready to drop the case.

Otoh, maybe you could read the actual article linked to. Michael Engel, the government's attorney arguing *against* granting the trademark concedes that he finds some merit in kink.com's case, and that it may be up to the courts to decide. Randazza's argument may well be a bridge too far for the current courts, but to dismiss it out of hand as "hella weak" seems silly (when did people start saying "hella", btw? Was it the same week they started putting their baseball caps on sideways?).

06/08/2007 7:21 PM Lucky Knight says:

Sounds like a good case to me. With our freedoms frequently being chiseled out from under us, it's nice to
see Lawsuits that win back some of it back.

07/15/2007 11:40 PM Engawyer says:

I don't get this story. I had a client who was able to get a patent and a trademark on a sex toy with the word "fuck" in the title. Here are some others from the PTO's website.

1 78666880 WILDFUCKTOYS TARR DEAD
2 78643827 FUCK.XXX TARR DEAD
3 78822587 DON'T FUCK WITH THE JEWS TARR DEAD
4 78729002 ¡CHINGA LE! TARR DEAD
5 78703973 FUCK EVERYBODY TARR DEAD
6 78955927 FUCK OFF TARR LIVE
7 78652919 WE PUT THE FUCK IN YOU TARR DEAD
8 78930828 I DON'T GIVE A FUCK! TARR LIVE
9 78607728 FUK LUV TARR DEAD
10 78584048 FUKITOL TARR DEAD
11 78564750 FUKITOL TARR DEAD
12 78521486 FUCK ME I'M FAMOUS TARR DEAD
13 78515618 FUCK YOU CHOPPERS TARR DEAD
14 78504371 FUHKIT TARR DEAD
15 78377461 FUCK SHUI TARR DEAD
16 78491710 FUCK YOU YOU FUCKIN' FUCK TARR DEAD
17 78460149 FUCKTHESCENE TARR DEAD
18 78434338 FUC THE SYSTEM TARR DEAD
19 78357243 FUCK PILATES TARR DEAD
20 78333786 SERIOUS PIMP FUCK YOU PAY ME TARR DEAD
21 78323286 FUCK YEAH TARR DEAD
22 78284214 FUCK LIKE A BEAST TARR DEAD
23 78268360 FUCKFAME TARR DEAD
24 78257341 FUCK THE WORLD TARR DEAD
25 78249389 FUCK THE WORLD TARR DEAD
26 78143159 PHUCKIT SPORTSWEAR TARR DEAD
27 78129558 FUCK YOU TARR DEAD
28 78007694 MYNDFK THE MINDFUCK CHANNEL TARR DEAD
29 77198633 I WANNA FUCK THE DJ! TARR LIVE
30 77079909 FUCKTUBE TARR LIVE
31 76645482 FUCK ME NO FUCK YOU TARR DEAD
32 76626410 FUCKYOU TARR DEAD
33 76579563 I WOULD FUCK ME TARR DEAD
34 76563222 FUCK YEAH TARR DEAD
35 76560190 PHUK DAT! TARR DEAD
36 76432640 F.U. I'M SENSITIVE TARR DEAD
37 76154348 FUCKINTERNET.COM TARR DEAD
38 75641339 FUCK. COM TARR DEAD
39 75171250 FUCK OF THE YEAR TARR DEAD
40 75111620 WE FUCK U TARR DEAD

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