The Patent & Trademark Office (PTO) is taking a 2nd look at a por...

site’s attorney told us. FuckingMachines.com was denied a trademark by an examining attorney who said its proposed “fuckingmachines” mark violated what’s known as (2)(a), for the Lanham Act section banning “immoral or scandalous” marks. In an appeal last week to the Trademark Trial & Appeal Board, site owner CyberNet Entertainment said the PTO improperly barred a list of words -- namely the 7 dirty words of FCC fame -- “of such magical quality that no legal standards need apply.” But use of “fuck” in a mark “must be examined in the context of the current attitudes of the day,” not times “reeling from Victorian influence,” still strong when (2)(a) was written, the filing said. The proposed mark may not be “polite” in some contexts, but U.S. Appeals Court, Federal Circuit, precedent holds that the mark must be considered in the context of the relevant market -- “erotic entertainment consumers.” In denying the application, the examining attorney said PTO “policy” would be undermined if (2)(a) never could be applied to marks for “pornographic goods and services,” CyberNet’s filing said. It called that a “truly disturbing” decision. “Fucking” is nearly as frequent a Google search term as “living,” and more common than “making love,” even when limited to U.S.-based IP addresses -- showing that U.S. society is “more uncomfortable with love than with fucking,” the filing said. CyberNet challenged the examining attorney’s citation of FCC policy on broadcast indecency, which it said doesn’t apply online, and said even saying “fuck” on broadcast TV has been ruled appropriate in particular contexts when viewers aren’t subject to “ambush.” The “fuckingmachines” dispute is the latest example of rising use of (2)(a) to torpedo ribald trademarks, a trend dating to 2004, CyberNet attorney Marc Randazza said, calling it part of the “hysterical” govt. reaction to the Janet Jackson nipple broadcast at the Super Bowl. Before that, (2)(a) was best known for its citation in revoking the Washington Redskins’ trademark as improper in relation to Native Americans, he said. Now some rejections “defy all logic,” banning marks using “bang” as potentially sexual or “BS” as crude: “The examining attorneys as a group appear to have gotten a lot more censorial.” But Randazza conceded that the examining attorney handling the CyberNet application made reasonable contentions, and the mark would have raised eyebrows even before the Jackson episode. Rejections of porn trademarks as “generic” aren’t common, he added. Marks deemed “descriptive” can be approved with “evidence of acquired distinctiveness,” such as the universal recognition of the American Airlines brand, Randazza said.