NSFW: EVERYBODY PANIC

We here at reason have a complicated relationship with trademarks, patents, and copyrights. But sometimes there's good clean fun to be had with the Patent and Trademark office.

Drew Curtis, impresario of Fark.com, and subject of an interview in the December print issue of reason, has applied for a trademark on NSFW.

About the NSFW Trademark Application, I can say three things:

1) Yes, we applied for it.

2) Can't comment on the prank angle other than "stay tuned."

3) Muhahaha.

Apparently, in the time-honored Fark in-joke lexicon: EVERYBODY PANICKED and sent Curtis angry letters. He replies:

I'm guessing the complaints are from people who don't read Fark, otherwise they'd know our end goal couldn't possibly be suing everyone using NSFW out of existence.

Via Jeff Taylor

Comments

[Rimfax]

Reason articles on Fark.com

[TM]

Easy rejection.

It's descriptive, and FARK cannot show secondary meaning.

[Meh]

They've applied for it. Big deal. You can apply for anything.

[J sub D]

They've applied for it. Big deal. You can apply for anything.

Here is one example why people would fall for this. It's not much different, is it?

[Daze]

So what's the joke?

[paulie]

NSFW?

YMMV

[Xmas]

If I was to make a guess as to what they are trying to do, two words... naming and rights.

[Kaganspawn]

Not real familiar with fark but a quick look indicates it is a news aggregator and comment site. NSFW is definitely not a descriptive mark, pace TM, because seeing "NSFW" does not immediately make people think of news aggregation services. It's on the suggestive side of the line between descriptive and suggestive marks. The fact it's an acronym doesn't make it descriptive either, unless the underlying phrase is itself descriptive, which it isn't here.

The hard issue for fark would be a challenge based on their first use date (they claim a first use in 2001). Just using the acronym in a story or comment in 2001 isn't enough to establish rights in it, they would have to have used it in a tm sense, i.e. to identify the site as a source of news aggregation, commentary etc. It's as if Reason applied for tm protection on the phrase "It's for the children." Insiders and lurkers know the phrase, but does the publication use that phrase to identify itself as a source of news and information services? No, that's how it uses the marks REASON and REASON.COM.

Now, back to ... oh never mind.

[penxv]

"Ultimate fighting" is a trademarked phrase. They've sued over it.

[someguy]

1) EVERYBODY PANIC might be part of the Fark lexicon, but don't give them any more ideas about trademarking something they didn't come up with 😉

2) I really like Kaganspawn's comments. It looks like he had to type a lot to try and prove he knows what he's talking about.

3) Fark owns the internet. You'll get over it.

[dude108]

I think it's for two things:

1) Keep anybody else from jumping on it and then trying to make Fark stop using it, and/or

2) Inexpensive publicity, seeing as it's all over the damn internet.

I might be wrong

[Johncjackson the 3rd]

I own a few NSFW sites with nice traffic.

BTW, is there a link for this, or is just excerpted from a private email?

[Mith]

Here's the link via Fark

[Ayn Rand]

I'm just glad I don't have someone watching over my shoulder telling me what's "safe" to look at on the Intarwebs.

[TM]

Kaganspawn:

Check the services listed in the application, and then tell me its not descriptive.

[Taktix?]

"Ultimate fighting" is a trademarked phrase. They've sued over it.

This is a bit different. "Ultimate Fighting" is the UF in UFC, which is the name of a particular organization.

If the acronym in question was "Fark's Not Safe For Work," it would be a different story...

[Sulla]

Kaganspawn-
That's a good analysis and I don't totally disagree, but I do think the issue is more complex. For the purpose of a Section 2(e)(1) Descriptiveness analysis, a term need not describe all of the purposes, functions, characteristics or features of the goods and/or services to be merely descriptive. In re Dial-a-Mattress Operating Corp., 240 F.3d 1341, 1346, 57 U.S.P.Q.2d 1807 (Fed. Cir. 2001). It is enough if the term describes only one significant function, attribute or property. In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) ("[A] mark may be merely descriptive even if it does not describe the 'full scope and extent' of the applicant's goods or services.") (quoting In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1346, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)).

If I were the examiner for the application, I would probably make the argument that the term "Not Safe For Work" is descriptive of one aspect of the claimed services, that the website features links with content that is "not safe for work." I haven't done the evidentiary search, but I doubt there would be any trouble finding the phrase used descriptively all over the internet, and even on Fark.
Not that it's a sure winner, but I think the descriptiveness argument is stronger. Another interesting question is whether it is capable of acquiring distinctivenss and therefore can get on with 2F or the supplemental register.

[robc]

Didnt despair.com succeed in getting the trademark on the frowny? 🙁

The responses they got when they "threatened" to sue anyone who had ever used it in an email where very funny.