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NOT an Enforceable Trademark

How many times do I have to remind everyone — trademarks are not “word patents.”

The adult movie studio, X-Play, has published a series of porno parodies where it throws the word “NOT” before the name of an otherwise well-known title. For example, X-Play published titles like “Not the Bradys XXX,” “Not Bewitched XXX,” “Not the Cosbys XXX,” “Not Married with Children XXX,” “Not Airplane XXX: Flight Attendants.”

After a two year struggle to get a registration for the word “NOT,” X-Play finally wore down its examining attorney, and procured a registration. Now it thinks, all giddy like, that it can stop other studios from using the word “not” in their movie titles.

with the proliferation and popularity of the porn parody by so many companies it became more important than ever to protect our Not…XXX brand and we now have legal rights to keep others from using the word ‘not’ especially at the beginning of their movie title,” Mullen added. (source)

Boy is he in for a rude awakening.

X-Play reportedly has taken the position that other companies that might have released porn parodies like “Not Really the Dukes of Hazard” and “Not Another Porn Movie” will be precluded from releasing sequels now.

Yeah, good luck with that.

That “trademark” is completely unenforceable – at least the way that they think it will be enforced. It might be one thing if they wanted to launch NOT brand porn, but in this case, if they think that a judge will tell another company that they can’t call a parody of the Simpsons “Not the Simpsons,” then they need better trademark advice.

This mark should never have been approved in the first place, and it is no wonder that Mullen was quiet about it when he was waiting for the mark to finally ooze its way past a clearly lazy trademark examiner.  Had it been opposed, it never would have been granted.  

“Trademark trolling” is becoming a problem for the adult entertainment industry.  Some adult businesses are being advised by their attorneys that “trademark” is a verb — and thus, the first to get their application in “owns the word.”  That isn’t how it works.  

The first time that this studio tries to enforce this so-called trademark (at least in the manner that they seem to think they can), they are going to get hit with a counterclaim for cancellation – and that cancellation will be successful. 

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