AN ®-RATED SUCKER BORN EVERY MINUTE

ImageAgentProxySince 1979, Marsha Fox has sold chocolate, rooster-shaped lollipops — especially popular among fans of the University of South Carolina and Jacksonville State Gamecocks — using the fully intended double entendre COCK SUCKER.  In 2001 she applied to the United States Patent and Trademark Office to register the design shown here as a trademark.   Yesterday the United States Court of Appeals for the Federal Circuit issued a ruling affirming the PTO’s decision to deny registration under 15 U.S.C. § 1052, which prohibits registration of marks that contain “immoral, deceptive, or scandalous matter.”  When the solemnity and majesty of the law meets the ribaldry of the vernacular, unintended hilarity is bound to ensue.  Much more about this seminal case after the jump.

The PTO examiner reviewing Fox’s application found a dictionary definition of “cocksucker” as “someone who performs an act of fellatio.”  The examiner conceded that the mark might also be understood literally to connote a “rooster lollipop,” but concluded that “due to the strong meaning of ‘cocksucker’ in society in general . . . a substantial composite of the general public will . . . assign the scandalous meaning to the wording/mark,” and refused to register it.

It seems to me the analysis went off in the wrong direction right at the outset.  When was the last time, upon hearing the word cocksucker, you paused even momentarily to wonder whether the speaker’s meaning was “person I dislike intensely” or “fellator”?  And if Fox is correct that cocksucker literally means rooster lollipop, wouldn’t the word portion of her mark be unregistrable as generic?  But I digress.

The examiner was unmoved by Fox’s petition for reconsideration, which emphasized that in her mark “cock sucker” were two separate words.  “Taking COCK in context with SUCKER,” the examiner wrote, “the primary meaning of this wording as a whole is ‘one who sucks a penis.'”

The Court of Appeals agreed that “the distinction between COCKSUCKER and COCK SUCKER is a distinction without a difference.”  (I look forward to that appearing as a headnote in the West Law Reports.)  “So too,” it continued, “the association of COCK SUCKER with a poultry-themed product does not diminish the vulgar meaning—it merely establishes an additional, non-vulgar meaning and a double entendre.”  The Court went on to reject Fox’s principal argument on appeal, that in the case of a double entendre, the burden is on the PTO to show that the vulgar meaning predominates.  It is sufficient to deny registration, the Court held, if the mark has any vulgar connotation.

The Court recognized that there “are ‘whimsical’ and humorous aspects to Fox’s mark,” but held that did not diminish its vulgarity, noting that cocksucker was one of George Carlin’s famous “seven dirty words” that the Supreme Court found vulgar 1978, nothwithstanding that Carlin’s concert recordings indicated that its utterance produced peals of laughter from his audiences.  And the Court emphasized that there were no First Amendment issues at stake, as the refusal to register the mark in no way impeded Fox’s right to continue using it (nor, for that matter, is she precluded from enforcing it as an unregistered mark).  “If Fox is correct that the mark ‘brings nothing more than perhaps a smile to the face of the prospective purchaser,'” the Court consoled, “then the market will no doubt reward her ingenuity.”

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  1. THE WASHINGTON PRO FOOTBALL FRANCHISE | Express Written Dissent

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