To: | Wilson Rock Band, Inc. (jbellanca@hertzschram.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 88129259 - FUCKERY - 12715-1 |
Sent: | 1/11/2019 10:27:55 AM |
Sent As: | ECOM100@USPTO.GOV |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88129259
MARK: FUCKERY
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CORRESPONDENT ADDRESS: |
GENERAL TRADEMARK INFORMATION: http://www.gov.uspto.report/trademarks/index.jsp
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APPLICANT: Wilson Rock Band, Inc.
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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SUSPENSION NOTICE: NO RESPONSE NEEDED
ISSUE/MAILING DATE: 1/11/2019
The trademark examining attorney is suspending action on the application for the reason(s) stated below. See 37 C.F.R. §2.67; TMEP §§716 et seq.
NO CONFLICTING MARKS FOUND: The trademark examining attorney has searched the USPTO’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).
For a mark to be “scandalous,” the evidence must show that the mark would be considered shocking to the sense of decency or propriety, giving offense to the conscience or moral feelings, or calling out for condemnation. In re Fox, 702 F.3d 633, 635, 105 USPQ2d 1247, 1248 (Fed. Cir. 2012) (quoting In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1371, 31 USPQ2d 1923, 1925 (Fed. Cir. 1994)); see TMEP §1203.01.
A mark is scandalous when the evidence demonstrates that a substantial composite of the general public (although not necessarily a majority) would consider the mark to be scandalous in the context of contemporary attitudes and the relevant marketplace. See In re Fox, 702 F.3d at 635, 105 USPQ2d at 1248 (quoting In re Mavety Media Grp. Ltd., 33 F.3d at 1371, 31 USPQ2d at 1925-26); In re The Boulevard Entm’t, Inc., 334 F.3d 1336, 1340, 67 USPQ2d 1475, 1477 (Fed. Cir. 2003); TMEP §1203.01.
In this case, applicant seeks registration of FUCKERY for “Entertainment services in the nature of live musical performances; Provision of information relating to live performances, road shows, live stage events, theatrical performances, live music concerts and audience participation in such events.” The attached evidence shows this wording means “something foolish”. Therefore, the term “FUCKERY” appears to be scandalous. Please see:
http://www.dictionaryfocus.com/?action=definition&word=fuckery
http://en.wiktionary.org/wiki/fuckery
http://www.urbandictionary.com/define.php?term=Fuckery
Registration normally would be refused under the scandalousness provision Section 2(a) because applicant’s mark consists of or includes matter that may be immoral or scandalous and thus violates the statute. However, the constitutionality of this provision remains subject to potential U.S. Supreme Court review because the parties in In re Brunetti, 877 F.3d 1330, 125 USPQ2d 1072 (Fed. Cir. 2017) (reh’g en banc denied, No. 2015-1109 (Apr. 12, 2018) (per curiam)) have until July 11, 2018, unless extended, to petition the Court for a writ of certiorari. See Sup. Ct. R. 13.
Because the constitutionality of the scandalous provision of Section 2(a) remains in question, action on this application will be SUSPENDED when it is in condition for final action until either (a) the time for filing a petition for certiorari in In re Brunetti (including any extensions granted) expires and no petition is filed; or, (b) a petition for certiorari is filed and the Court (1) denies certiorari or (2) grants certiorari and subsequently terminates the U.S. Supreme Court proceedings in the case. See 37 C.F.R. §2.67; TMEP §§716, 716.02(d).
Applicant is advised that, should the U.S. Supreme Court grant the petition for certiorari and ultimately determine that the scandalousness provision of the Trademark Act is constitutional, then registration may be refused because the applied-for mark consists of or includes matter that may be immoral or scandalous. 15 U.S.C. §1052(a); see TMEP §1203.01.
The USPTO will periodically conduct a status check of the application to determine whether suspension remains appropriate, and the trademark examining attorney will issue as needed an inquiry letter to applicant regarding the status of the matter on which suspension is based. TMEP §§716.04, 716.05. Applicant will be notified when suspension is no longer appropriate. See TMEP §716.04.
No response to this notice is necessary; however, if applicant wants to respond, applicant should use the “Response to Suspension Inquiry or Letter of Suspension” form online at http://teasroa.gov.uspto.report/rsi/rsi.
/Judy Grundy/
Attorney Advisor
Office of the Deputy Commissioner
for Trademark Examination Policy
judy.grundy@uspto.gov
571-272-8501
PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at http://tsdr.gov.uspto.report/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the Trademark Electronic Application System (TEAS) form at http://www.gov.uspto.report/trademarks/teas/correspondence.jsp.