Trademark law doesn't, anyway.
Meet Marsha Fox. Since 1979, she has used the image of a crowing rooster and the name COCK SUCKERS to promote her rooster-shaped chocolate lollipops (see above), which she displays in retail outlets in small replicas of egg farm collecting baskets to emphasize the country farmyard motif. She targets fans of the University of South Carolina and Jacksonville State University with her wares, both of whom have as their mascot the gamecock.
Fox applied to trademark the name COCK SUCKERS for her lollipops and was rejected; the Patent and Trademark Office examiner determined that mark could not be protected because the dictionary apparently defines “cocksucker” as “someone who performs an act of fellatio," and as such the mark was therefore unregistrable under trademark law which does not protect "immoral, deceptive, or scandalous matter.”
[You can't trademark something if the PTO demonstrates that the mark is "shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense," or “vulgar” in the context of contemporary attitudes, in the context of the marketplace as applied to only the goods described, and "from the standpoint of not necessarily a majority, but a substantial composite of the general public.”]
Fox argued in response that “Webster’s Dictionary defines . . . a cock as a rooster, and .. . a sucker as a lollipop,” and that these nonvulgar definitions were more relevant than the vulgar one, and given that she was labeling them COCK SUCKERS and not COCKSUCKERS, the public would be more prone to understand the non-vulgar meaning. Again the PTO examiner refused, noting that "cock" also meant "penis" and sucker was "one that sucks."
The matter was appealed to the United States Court of Appeals for the Federal Circuit, which issued its unanimous ruling today:
As an initial matter, Fox concedes that “cocksucker” is a vulgar term in its common usage, and the dictionary evidence is devoid of an alternate, non-vulgar definition for that word. Fox urges, however, that “[i]n the present case, the space between the words makes all the difference.” However, Fox concedes that a mark’s “sound” is central to its “commercial impression.” Fox, moreover, has admitted that her mark at least in part has a vulgar meaning. She acknowledged that “the . . . humor of the mark is derived” from “[the] possibility of [a] double entendre,” consisting of a vulgar and a non-vulgar meaning. At oral argument, she conceded that her mark, if used to sell sweaters, would be unregistrable as vulgar. We think that the Board did not err in concluding that the distinction between COCKSUCKER and COCK SUCKER is a distinction without a difference. So too the association of COCK SUCKER with a poultry-themed product does not diminish the vulgar meaning—it merely establishes an additional, non-vulgar meaning and a double entendre. This is not a case in which the vulgar meaning of the mark’s literal element is so obscure or so faintly evoked that a context that amplifies the non-vulgar meaning will efface the vulgar meaning altogether. Rather, the mark is precisely what Fox intended it to be: a double entendre, meaning both “rooster lollipop” and “one who performs fellatio.”
Rest assured, this doesn't mean that Fox can't sell the lollipops; only that she can't reserve the name COCK SUCKERS to herself alone for similar products:
Nothing in this decision precludes Fox from continuing to sell her merchandise under the mark at issue, or from seeking trademark protection for some other, otherwise registrable element of her product’s design, dress, or labeling. If Fox is correct that the mark at issue “bring[s] [nothing] more than perhaps a smile to the face of the prospective purchaser,” then the market will no doubt reward her ingenuity. But this does not make her mark registrable....
To reiterate, the outcome of our decision is that Fox will remain free to use her mark in commerce. She will be unable, however, to call upon the resources of the federal government in order to enforce that mark.
Ian McShane approves this diary.