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.

Update: Supreme Court Decision in June 2019

On June 24th, 2019 the US Supreme Court issued a 6-3 decision that struck down the ban on trademarking ‘immoral’ or ‘scandalous’ words and symbols. The case was centered around clothing designer Erik Brunetti, who was looking to trademark FUCT.

From the recent coverage by NPR:

First Amendment experts were divided as to whether Congress could enact a narrower law that would pass constitutional muster. Alito left no doubt where he was. “Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas,” he wrote in a concurring opinion.

But the majority was not so welcoming, saying only that it was taking no position on statutes that Congress might write in the future.

All nine of the justices agreed that the federal law banning “immoral” trademarks was too broad, that it would allow the government to grant trademarks to messages it approved and deny trademarks for messages it disapproved. But when it came to “scandalous” trademarks, the unity fell apart.

We will see what Congress does from this point onward, and what (if any) additional limitations they put in place.

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Trademark attorney Xavier Morales

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