Rage Against the Farkingmachines

In the Orlando Weekly Jeffrey Billman profiles a porn webmaster and his lawyer who are trying, in vain, to patent the name "fuckingmachines." What seemed like a terrific, rolls-off-your-tongue name for a smut site butted up against patent laws that prevent "profanities" from becoming part of a trademark.

According to the office's website, there have been 39 trademark petitions that include the word "fuck," five that have "fucking" – including one attempt to trademark the word itself – one with "cunt" and at least 50 with "shit," again including at least one person who tried to trademark the word itself. None have been approved, though a handful of cases, like "fuckingmachines," are still pending. "Bitch," by the way, has been allowed in most cases. There are at least 135 approved trademarks that include the word "ass."

But Acworth was also denied a trademark for "whippedass," though that decision was later reversed.

It's all happening in Florida (and California), of course.

Comments

[gorgonzola\'s foil]

Prior art. James Brown. Get up, get on up. Like a sex machine, movin' doin it, you know like a lovin' machine.

[Christopher Monnier]

Profanity remains in the public domain!

[David]

They can always use Humpmaster 3000 or Love-O-tron.

[Bloodhound Gang]

"Discovery Channel" is out?

[Raymund]

Sorry to put on my anal-retentive patent agent hat, but they're trying to trademark the word "fuckingmachines," not patent it.

[Prior Trademark Examiner]

Not to be pedantic, but they are trying to trademark the term. I'm not sure what the big fuss is. The examiner is just doing his job. He's constrained by the case law and by Section 2a of the Lanham Act. He has no discretion when dealing with the big bad F-word - time and time again the federal courts, at all levels have determined it to be scandalous. It's silly to argue that it's vague - it requires just as much analysis as some of the other sections of the Lanham Act, such as 2(e)(1) descriptiveness. The proper way to get rid of 2(a) refusals is through Congess amending the Lanham Act. Finally, this is purely anecdotal, but I don't think there is much, if any, pressure from the Bush administration to increase 2(a) refusals. The other attorney, Kuczma, is right - there has been a huge increase in filings, particularly by non-lawyers who don't realize that you can't trademark scandalous material.

[damaged justice]

If any machine deserves a patent, it's these.

[Prior Trademark Examiner]

Ah, raymond pointed out the patent/trademark thing first

[mediageek]

If I go to Fark, and this story is posted there, it'll have a Florida tag.

[Alan Vanneman]

"...tongue ... butted up ...."

Funny, Dave, funny! Please ignore all those cheap shots I've taken on you in the past.

[Warren]

For Zog's sake David. Mistaking trademark for patent? What a poser.

I don't think he should get TM for FuckingMachines. I don't have a problem with TMing profanity. But you can't TM an ordinary word that enjoys common usage.

[Warty]

Hm. He seems to run a lot of fascinatingly perverse sites. Whippedass? Wiredpussy? I'm somewhat shocked Gonzalez & homies haven't destroyed him yet.

[Dan T.]

This is a good thing, right? It would be a violation of my liberty if the government used men with guns to prevent me from marketing a product with a name just because somebody else had already thought of it.

[Warty]

Jesus cocksucking Christ. Shut the fuck up, asshole.

[R C Dean]

It would be a violation of my liberty if the government used men with guns to prevent me from marketing a product with a name moving into someone;s house just because somebody else had already thought of itacquired title to it.

[Prior Trademark Examiner]

This is a good thing, right? It would be a violation of my liberty if the government used men with guns to prevent me from marketing a product with a name just because somebody else had already thought of it.

1) Are trademarks really necessary? I do think that in general they provide a useful function - identifying the source of goods and services. When I buy a Pepsi, it's because I trust the Pepsi Cola company to provide a safe, consistent product. It would be unfair to allow some other random company to exploit that built up goodwill to sell their soda under the same name. What if that soda is a lot cheaper because the random company uses unsafe products. There is something to be said for being able to trust identifiers.

2) The more interesting question is: to what extent should the government be involved. As a quasi-libertarian employed by the Trademark Office, I thought a lot about this. I ended up deciding that it make sense to have a central system for registering marks, so that consumers can have confidence that when they see the (R), that the use means something. Still I wonder if that function could be performed by competing firms, i.e., the Acme Trademark Association uses (A) and the Widget Coalitioon for Marks uses (W). Ultimatetly it seems government would still be involved, becasue the private trademark firms would need a way to deter/punish companies using their marks illegitemately. Perhaps that could work, relying on tort or contract law, and I'm open to arguments. Still it seems that it's more effecient to have it done by one entity.

[jadagul]

Dan, don't remember what of it you've been around for, but once every couple months or so we have a big blow-up over what sorts of IP should be acceptable in a libertarian state. So we're not unaware of the issue. 🙂 Those of us (like me) who tend to be more results-oriented are fine with it, at least in theory. The natural-rights-ists tend to be offended by it, for the reasons you mention. And the Objectivists tend to be strongly in favor of it, because the ideas that inventors come up with are the important thing.

That said, trademarks tend to be the least controversial of all IP-type protections, because they're mostly designed to prevent fraud. It doesn't keep me from selling a TiVo; it just keeps me from claiming that my product is the one the TiVo company puts out.

[wingnutx]

God bless this man and his fine, fine websites.

[tarran]

You can also have free market trademarks.

For example, Walmart and Costco could band together and set up a trademark registry for people selling in their stores and use it to both attract customers ("we guarantee no counterfeits") and keep suppliers happy ("once you register with us, you'll be the only one with your name selling in our store")

Customers who don't want to buy counterfeit products will give their custom to stores that participate with the voluntary trademark scheme.

Unlike patents, free market systems of copyright and trademark are very feasible.

Additionally, someone who is tricked can sue for fraud. Under a free market judicial system, they may have trouble collecting - on the other hand someone who keeps skiving out on judgments will have increasing trouble trading with people as his or her infamy grows.

[crimethink]

I would think the religious right would be all for this. Indeed, they should encourage someone to trademark the F-word itself. Then, if someone says it on TV or even on cable, they can be sued for trademark infringement AND fined by the FCC.

[anonymous pervert]

I would also like to point out that this man produces some excellent pornographic websites. There's usually some free porn, too!

[GILMORE]

Warty | June 8, 2007, 11:15am | #

Jesus cocksucking Christ. Shut the fuck up, asshole.

Well said. I'm setting this phrase to an autotext button for future use on Dan T, Dave W

[Guy Montag]

and his lawyer who are trying, in vain, to patent the name

Wouldn't that be Copyright, and/or as others have said, trademark?

[David Nieporent]

Customers who don't want to buy counterfeit products will give their custom to stores that participate with the voluntary trademark scheme.

Tarran, the problem with that theory is that trademarks aren't a matter of mere contract. Let's say that you see your neighbor using a... say, GE brand toaster, and then it catches fire and burns down his house. You may be rather reluctant to buy a GE toaster in the future, right? The fact that it was counterfeit doesn't help GE; your neighbor might know that he bought the toaster at a non-participating store, but you won't.

Of course, that's not to say that we need government registration of trademarks; indeed, most trademarks are not registered with the Trademark office now. But the idea that we can rely on 'caveat emptor' is unrealistic.

[tarran]

But GE wasn't harmed. If I choose not to buy a GE toaster, I am not harming GE - they continue to have all their property intact. They do not have a property right to my custom.

The reasons I choose not to buy GE toasters are thus irrelevant.

Now granted bad publicity can do a company in as happened with McDonald Douglas (the perception that the DC-10 was defective arose from the crash in Chicago of an aircraft that had been damagedwhen the airline violated McDonald Douglass's maintenance procedures) but that is not a injury.

[Catonio]

The appeal itself is available here.

[David Nieporent]

Tarran, if I say, "Don't hire Tarran; he's a child molester," you probably won't get whatever job you're applying for. You do not have a property right to get that job. Do you think that means you weren't harmed?

If you don't think that reputational injuries are injuries, we'll have to disagree.