Trademarks and profanity

The short answer is: no, you cannot trademark a “bad” word if it is scandalous, offensive, or immoral. U.S. trademark law absolutely bars trademarking words of immoral or scandalous matter. To be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation,” in the context of the marketplace as applied to goods or services described in the application. In re Mavety Media Group Ltd., 33 F.3d 1367, 1371, 31 USPQ2d 1923, 1925 (Fed. Cir. 1994); In re Wilcher Corp., 40 USPQ2d 1929, 1930 (TTAB 1996). Scandalous-ness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, … and in the context of contemporary attitudes.” Id.

This basically means that if your trademark contains offensive or shocking language, then the United States Patent and Trademark Office (USPTO) will likely refuse to register your trademark. However, what the USPTO has deemed to be “immoral” or “scandalous” has varied greatly. For example, the terms “fuck” and “shit” are clear examples of scandalous matter–not because people today are necessarily shocked or offended by the use of such words, but because the terms are traditionally considered vulgar. If you look up the term “fuck” in Merriam-Webster’s online dictionary, the entry itself specifies that the term is “usually obscene” and “usually vulgar.” However, the word “bitch”, although usually considered derogatory to women, is routinely accepted by the USPTO as part of a proposed trademark, the difference being that there are non-vulgar definitions of the word “bitch.”

In selecting a trademark, it’s important to keep in mind that immoral or scandalous matter cannot be protected by federal trademark law. Consulting a dictionary will usually reveal whether a particular word is traditionally considered vulgar or obscene.

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Trademark attorney Xavier Morales

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