TTAB Test: Is "F**K PROJECT" Scandalous for Handbags and Clothing?
The USPTO refused registration of the mark shown below, for "Leather and imitations of leather; leather and imitation leather goods, namely bags, suitcases, backpacks, traveling bags, purses, key-cases of leather and skins, wallets, briefcases for documents; umbrellas" (in class 18), and "Clothing, namely, T-shirts, shirts, jumpers, trousers, skirts, jeans, jackets, underclothes, bathing suits, hats and caps, footwear" (in class 25), deeming the mark to be immoral or scandalous under Section 2(a) of the Lanham Act. Applicant Giorgio S.R.L. appealed, arguing that "f**k" is an accepted euphemism employed as a substitute for "fuck," the latter being too vulgar for use in written media. How do you think this came out? In re Giorgio S.R.L., Serial No. 79141996 (September 30, 2015) [not precedential].
The Board's opinion includes a main opinion, a concurring opinion, and a dissent, and runs for 22 pages That in and of itself makes this case rather extraordinary. I will hit only the high points here.
Judge Shaw wrote the main opinion, finding the applied-for mark to be immoral or scandalous and thus barred from registration by Section 2(a). Because this is a family blog, I will not repeat the dictionary definitions of "fuck" (you know them anyway), which established that the word "fuck" is considered vulgar and obscene. The examining attorney submitted Internet evidence showing that F**K is commonly used in place of "fuck," Therefore, "the former may be considered equivalent to the latter, particularly in meaning and commercial impression." The asterisks in F**K "serve as a typographical 'fig leaf' to protect readers from the visual vulgarity of the word 'fuck' but the terms are nonetheless equivalents."
Credulity was strained by applicant's argument that the term F**K could refer to an infinite number of socially acceptable words, such as "fork" of "flack." [How about FINK or FOLK? - ed.] Writers use asterisks in the term F**K precisely because the asterisks mask the vulgar appearance of the word 'fuck' in its entirety, while at the same time leaving no doubt in the reader's mind of the meaning."
Judge Adlin concurred, under different reasoning, noting that "if we were writing on a clean slate," he would join the dissent. In cases involving euphemisms or alternative spellings of "bad words," the Board has generally found these terms to be scandalous. He also noted that the PTO has been consistent in refusing registration of marks analogous to F**K PROJECT.
Unless and until a court or a larger panel of the Board adopts a new course in situations such as this, it is not appropriate to disturb the settled expectations resulting from the Office’s prior and relatively consistent treatment of this type of mark.
If serving on a larger panel, however, Judge Adlin would view the evidence as does the dissent. He would not agree that F**K is vulgar, but rather he would find it to be a euphemism used precisely because it is not vulgar. The evidence showed that "public, for-profit websites, and book, movie, and clothing sellers use alternative spellings of 'fuck' in an apparent effort to not offend, or at least to reduce the level of offense arising out of calling to mind the word 'fuck.'"
Judge Seeherman dissented, emphasizing that the mark at issue is not FUCK PROJECT, which she would find scandalous, but F**K PROJECT. The judge did not agree with the conclusion that if a term would be readily understood as offensive, a substitute term is also offensive.
In Judge Seeherman's view, F**K is a non-offensive way of depicting the word FUCK. "F**K is a sanitized version of the vulgar word 'fuck,' but because it is sanitized by the fig leaf asterisks, it should not be treated as being the same as the vulgar word that the fig leaf asterisks are obscuring."
At the very least, the record shows that there is some question about whether "f**k" would be perceived as an offensive or vulgar word, or as a euphemism for the offensive word “fuck.” This is enough to show that there is doubt as to whether the applied-for mark, F**K PROJECT in stylized form, is scandalous and, accordingly, such doubt should be resolved in favor of publishing the mark for opposition.
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TTABlog comment: I've read enough F-bombs for one night, thank you. What do you think about the outcome?
Text Copyright John L. Welch 2015.