Trademark Denied Due to Scandalous Implication of Rooster Lollipop

LTB default 777x437

This decision mostly speaks for itself:

The mark at issue here has two parts: a literal element, consisting of the words COCK SUCKER, and a design element, consisting of a drawing of a crowing rooster. Since 1979, [the applicant] has used this mark to sell rooster-shaped chocolate lollipops…. The consumers targeted … are, primarily, fans of the University of South Carolina and Jacksonville State University, both of which employ gamecocks as their athletic mascots.

The trademark examiner refused to register the mark on the grounds that it was “immoral or scandalous matter” under Section 2 of the Lanham Act. The applicant disputed this, on the grounds that it was a “double entendre” and that in such cases the examiner should consider only the “primary meaning.” She also complained, with some merit in my view, that the examiner had ruined it by ignoring the space:

[Applicant] filed a motion for reconsideration, in which she clarified that “the intended term to be trademarked was COCK SUCKER [(with a space)], not COCKSUCKER,” and included a revised image of her mark in which the two words were clearly separated…. [She] protested that by “driv[ing the words] together,” the examiner had “stripp[ed] the mark of any possibility of double entendre from which the relevant humor of the mark is derived,” and also reiterated that the rooster design was intended to “guid[e] the potential purchaser to the less risqué of the two definitions.”

In August 2009, the examiner responded, noting that “COCK is defined . . . as ‘penis,’ and SUCKER as, ‘one that
sucks,'” and that both words are considered vulgar “as
used in context.” … Conceding that this vulgar meaning is not the primary meaning
of “cock,” the examiner asserted that “taking COCK in
context with SUCKER, the primary meaning of this
wording as a whole is ‘one who sucks a penis,'” and that  the strong and commonly known meaning of
COCKSUCKER in the general public” ensures that the
two component words, when used together, will “unequivocal[ly]” assume their vulgar meanings.


Wow, that’s a …
large rooster

On appeal, the Federal Circuit affirmed, rejecting the applicant’s argument that in this case, “the space makes all the difference.”

A mark’s “sound” is central to its commercial impression, the court noted, and so “[w]e think that the Board did not err in concluding that COCKSUCKER and COCK SUCKER is a distinction without a difference.” It also noted that “the fact that something is funny does not mean that it cannot be ‘scandalous'” for purposes of trademark law, and, citing George Carlin, noted that the opposite is also true.

The upshot of the decision is that while double entendres can be funny, and can be used in commerce, they can’t be trademarked. The reality is that the space does “make all the difference” for humor purposes, but for purposes of intellectual property, at least in this case it didn’t matter.