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The Great "Cockaholic" Battle – Ornamentation vs. Trademark Use

Niiice Cock

Urban Dictionary defines “cockaholic” as “someone with an insatiable lust for the shaft.”

With the term defined, you would think that you would have to enter an alternate universe to find two parties arguing over who is the true “cockaholic.” Welcome to that universe — You are now entering the Trademark Zone.

Sports-Aholic, Inc. filed an Intent to Use application for the trademark “COCKAHOLIC” in February of 2007 for Clothing, namely, t-shirts and sweat-shirts; Headgear, namely, caps. (source). Given the fact that someone at the USPTO has jerked the sensitivity lever to the far-right, I’m surprised that this wasn’t simply rejected as allegedly “immoral and scandalous.” (I don’t think that it is, but I’m surprised that the USPTO didn’t).

A party by the name of Benee Hudson alleges that prior to the date of Sports-Aholic’s application, she used the COCKAHOLIC mark on t-shirts and thus she has common law rights to the mark. She filed an opposition to Sports-Aholic’s registration. (opposition)

Movie titles are not
trademarks unless
they are for a series

Setting aside the inherent humor in two parties hiring expensive attorneys to argue over who is the real cockaholic, this whole mess could have been avoided if everyone paid better attention in their trademark law class.

In order for Ms. Hudson to claim that she has common law rights to the COCKAHOLIC mark, she is going to need to show that she uses it as an identifier of the source or origin of her goods. I did a few internet searches for the term, and I can’t seem to find any company that uses the term as such. That doesn’t mean that Ms. Hudson is lying — but her claim to common law rights is going to be a little more difficult to prove if she has no perceptible market footprint.

I was able to find a website, where “cockaholic” t-shirts are sold. Since Ms. Hudson lives in Kansas and that site is registered to someone in Kansas, there might be a connection — but it might just be a coincidence. Kansas is known as “the Cockaholic state” after all.

What I suspect is that Ms. Hudson, Sports-Aholic, and all misunderstand the concept of “ornamentation.”

The mere fact that a term appears on a shirt, hat, or any other product does not necessarily make that term a trademark. See, e.g., In re Pro-Line Corp., 28 USPQ2d 1141, 1142 (TTAB 1993). However, “[m]atter which serves as part of the aesthetic ornamentation of goods, such as T-shirts and hats, may nevertheless be registered as a trademark for such goods if it also serves a source-indicating function.” In re Dimitri’s Inc., 9 USPQ2d 1666, 1667 (TTAB 1988) (emphasis added).

In other words, an Abercrombie and Fitch T-Shirt that says ABERCROMBIE on it is ornamented by the term, but the term also serves as an indicator of the source or origin of the T-Shirt.

On the other hand, the T-Shirt design “COCKAHOLIC” as shown below, and as sold by is purely ornamental.

Ornamental, not a Trademark

In that example, “Hawkaholic” is a trademark, since the Hawkaholic online store sells a line of t-shirts with the “-aholic” suffix humorously attached to certain common words. On the other hand, “COCKAHOLIC” is mere ornamentation, despite the misuse of the “TM” symbol next to the term. See Ire Olin Corp., 181 USPQ 182, 182 (TTAB 1973) (“It is a matter of common knowledge that T-shirts are ‘ornamented’ with various insignia, including college insignias, or ‘ornamented’ with various sayings such as ‘Swallow Your Leader…’ ‘Swallow Your Leader’ probably would not be considered as an indication of source”).

Don’t even get me started with priority of use. It appears that there is a Suicide Girls Group called “Cockaholics” that has been active since 2004.

Got it? Good. Now lets sit back and watch how much money gets wasted on a trademark dispute over something that probably isn’t even a trademark in the first place.

HT: Bob Frank

Special thanks to Marty Schwimmer .

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