Adult Entertainment Law

Kink.com Appeals USPTO Refusal to Register “Immoral and Scandalous” Trademarks

Orlando Weekly published an article 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 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. Under the legal standard, the mark itself must be “shocking,” and “calling out for condemnation.” Kink has argued through that this particular word’s prevalence in common conversation and popular culture discredits the argument that the American marketplace, and especially the adult internet marketplace, would be “shocked” by this registration. The previous appeal for whippedass was successfully argued on similar grounds.