RK Netmedia, Inc.

Trademark Trial and Appeal Board

May 21, 2009

No. 77060742 (T.T.A.B. May. 21, 2009)

Mailed:
May 21, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re RK Netmedia, Inc.
________

Serial No. 77060742
Serial No. 77060766
_______

Marc J. Randazza of Weston, Garrou, Walters & Mooney for RK
Netmedia, Inc.

Katherine Connolly Weigle, Trademark Examining Attorney,
Law Office 101 (Ronald R. Sussman, Managing Attorney).
_______

Before Drost, Bergsman and Wellington, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

These appeals from the final refusals of the Trademark
Examining Attorney involve Section 2(a) of the Trademark
Act of 1946, 15 U.S.C. §1052(a), which precludes
registration of marks that consist of or comprise “immoral,
deceptive, or scandalous matter.” RK Netmedia, Inc.
(“applicant”) seeks to register use-based applications for
the marks CUMFIESTA and CUMGIRLS, in standard character
form, for “entertainment services in the nature of
photographic images, pictures, video and audio recordings,
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
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and information regarding adult oriented subject matter
transmitted through a global computer network,” in Class
41.1
The Examining Attorney contends that CUMFIESTA and
CUMGIRLS create commercial impressions which a substantial
portion of the general public consider immoral or
scandalous. Specifically, the Examining Attorney argues
that the word “cum” is a vulgar reference to semen or
ejaculate and that the combination of this term with the
words “fiesta” and “girls,” respectively, does not obviate
the immoral or scandalous connotation of the marks.2
Applicant argues, on the other hand, that the refusal
is wrong for six reasons:
1) The Examiner’s decision was
arbitrary and capricious; 2) The
Examiner improperly dissected the
mark(s); 3) The Examiner fails to
account for alternative definitions of
the term(s); 4) The term “cum” does not
rise to the level of condemnation
required under Section 2(A) (sic);
5) The Examiner failed to apply the
requirement that the mark must be
examined in the context of the relevant
marketplace; 6) the Examiner’s evidence
has been rebutted with superior
evidence.3

1 Because the same applicant filed both applications, the same
Examining Attorney reviewed both applications, and both
applications involve common issues of fact and law, we have
consolidated the appeals.
2 Examining Attorney’s Briefs, p. 2.
3 Applicant’s Amended Briefs, p. 2.
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A. Legal standard for determining whether a mark is
scandalous or immoral.

The determination of whether the marks are scandalous
is a conclusion of law based on the underlying facts. In
re Mavety Media Group Ltd., 33 F.3d 1367, 31 USPQ2d 1923,
1925 (Fed. Cir. 1994). To prove that that CUMFIESTA and
CUMGIRLS are scandalous or immoral, it is sufficient if the
Examining Attorney shows that the terms are vulgar.4 In re
Boulevard Entertainment Inc., 334 F.3d 1336, 67 USPQ2d
1475, 1477 (Fed. Cir. 2003) (showing that the mark is
vulgar is sufficient to establish that it is scandalous or
immoral); In re McGinley, 660 F.2d 481, 211 USPQ 668, 673
(CCPA 1981), quoting In re Runsdorf, 171 USPQ 443, 443-444
(TTAB 1971) (vulgar terms are encompassed by the term
scandalous). The U.S. Patent and Trademark Office has the
burden of proving that a trademark falls within the
prohibition of Section 2(a). In re Mavety Media Group
Ltd., 31 USPQ2d at 1925. See also In re Standard Electrik
Lorenz A.G., 371 F.2d 870, 152 USPQ 563, 566 (CCPA 1967).
In determining whether a particular designation is
scandalous or immoral, we must consider the mark in the

4 We note that the cases define scandalous and immoral in
additional and more comprehensive terms. However, the word
“vulgar” captures the essence of the prohibition against
registration, and therefore we shall use “vulgar” to facilitate
our analysis and discussion.
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context of the marketplace as applied to applicant’s
description of services. In re Boulevard Entertainment
Inc., 67 USPQ2d at 1477; In re Mavety Media Group Ltd., 31
USPQ2d at 1925 (there are multiple non-vulgar definitions
of the term “tail” applicable in connection with an adult
entertainment magazine); In re McGinley, 211 USPQ at 673.
Furthermore, the issue must be ascertained (1) from the
standpoint of a substantial composite of the general
public, and (2) in terms of contemporary attitudes. Id.
Thus, even though “the news and entertainment media today
vividly portraying degrees of violence and sexual activity
that, while popular today, would have left the average
audience of a generation ago aghast” [In re Mavety Media
Group Ltd., 31 USPQ2d at 1926], there are still terms that
are sufficiently vulgar that fall under the prohibition of
Section 2(a). In re Tinseltown, Inc., 212 USPQ 863, 866
(TTAB 1981) (“the fact that profane words may be uttered
more freely does not render them any the less profane”:
refusing to register BULLSHIT for personal accessories and
clothing).
B. The proper universe for determining whether a mark is
scandalous or immoral.

Before we analyze the evidence of record, we address
applicant’s argument that the determination of whether
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applicant’s marks are scandalous must be limited to the
relevant marketplace (i.e., Internet patrons of erotica),
not the public in general. Specifically, applicant
contends that “[t]o determine whether a mark is scandalous
or immoral, the Federal Circuit requires that the mark must
be considered in the context of the marketplace as applied
to only the goods or services in the application for
registration.”5 Citing In re Mavety Media Group Ltd., 31
USPQ2d at 1925; In re McGinley, 211 USPQ at 673; Greyhound
Corp. v. Both Worlds Inc., 6 USPQ2d 1635, 1639 (TTAB 1988);
In re Hershey, 6 USPQ2d 1470, 1471 (TTAB 2988). Applicant
concludes that the relevant market, patrons of erotic
entertainment, do not consider the word “cum” to be
scandalous or immoral. In fact, applicant asserts that
they would consider it to be rather “tame.”6
We do not agree with applicant’s conclusion that the
determination of whether a mark is scandalous or immoral is
limited to the “relevant market.” Rather, the
determination of whether a proposed mark will be perceived
as scandalous or immoral is ascertained from “a substantial
composite of the general public.” In re Mavety Media Group

5 Applicant’s Amended Briefs, pp. 9-10.
6 Applicant’s Amended Briefs, p. 10.
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Ltd., 31 USPQ2d at 1925; In re McGinley, 211 USPQ at 673;
In re Hershey, 6 USPQ2d at 1471.
In McGinley, the Court of Customs and Patent Appeals,
the predecessor to the Court of Appeals for the Federal
Circuit, held the following:
In determining whether appellant’s mark
may be refused registration as
scandalous, the mark must be considered
in the context of the marketplace as
applied to only the goods or services
described in the application for
registration. Whether or not the mark,
including innuendo, is scandalous is to
be ascertained from the standpoint of
not necessarily a majority, but a
substantial composite of the general
public.

In re McGinley, 211 USPQ at 673, citing In re Riverbank
Canning Co., 95 F.2d 327, 37 USPQ 268, 270 (CCPA 1938).
Riverbank involved the refusal to register the mark
MADONNA for wine on the ground that the mark was scandalous
under Section 5(a) of the Trademark Act of 1905. The court
held that “[i]n determining whether the mark, used upon
wine, is scandalous, we must consider the viewpoint, not of
wine drinkers alone, but also of those who do not use wine
as a beverage.” In re Riverbank Canning Co., 37 USPQ at
270.
In our opinion, to commercialize the
name of, or a representation of, the
Virgin Mary as a trade mark is of very
doubtful propriety, and we feel certain
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that its use upon wine for beverage
purposes would be shocking to the sense
of propriety of nearly all who do not
use wine as a beverage, and also to
many who do so use it.

Id.
The Federal Circuit recently decided that 1-800-JACK-
OFF and JACK OFF were scandalous when used in connection
with “entertainment in the nature of adult-oriented
conversations by telephone” by focusing on the perception
of the general public. In re Boulevard Entertainment Inc.,
67 USPQ2d 1475. In assessing the probative value of
dictionaries, the Federal Circuit opined that “dictionary
definitions represent an effort to distill the collective
understanding of the community with respect to language and
thus clearly constitute more than a reflection of the
individual views of either the examining attorney or the
dictionary editors.” 67 USPQ2d at 1478. If the
determination of whether a mark is scandalous was limited
to the relevant market, then the “collective understanding
of the community” would be irrelevant. Accordingly, the
court considered evidence of how the community at large
perceived the mark at issue, not just the relevant
consumers.
Furthermore, the court was not persuaded by
applicant’s evidence that the term JACK OFF was not
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scandalous because the evidence was not representative of
the perceptions of the general public.
The fact that Boulevard’s declarants
regarded the term, as one put it, as
“moral, decent, and proper” falls short
of establishing that the term would not
be regarded as vulgar by a substantial
composite of the public. Moreover,
Boulevard’s assertion that sexually
oriented publications are “willing
without hesitation, indeed
enthusiastic” to accept advertising
featuring the term “jack-off” says
nothing about whether the term would be
vulgar to persons not involved in that
industry, either as producers or
consumers.

In re Boulevard Entertainment Inc., 67 USPQ2d at 1479.
In view of the foregoing, we hold that the
determination of whether a term is scandalous or immoral is
determined by the perceptions held by a substantial
composite of the general public, not merely applicant’s
customers or potential customers.7

7 Applicant included in its amended briefs a survey of GOOGLE
searches comparing the number of Internet users who search for
the word “cum” versus those who search for the words “ejaculate”
and “orgasm” purportedly to show that Internet users do not
consider the word “cum” to be vulgar. The Examining Attorney
objected to this evidence as untimely. In its reply briefs,
applicant requests the Board to take judicial notice of the
search survey or, in the alternative, to remand the application
so applicant may supplement the record. Because the GOOGLE
search survey was submitted after the appeal was filed, it was
untimely. Trademark Rule 2.142(d), 37 CFR §2.142(d).
Accordingly, the Examining Attorney’s objection is well taken.
Moreover, a survey of searches conducted through a private search
engine is not the type of evidence for which we may take judicial
notice because it is not information which is generally known,
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The language in the cases that the mark must be
considered in the context of the marketplace as applied to
only the goods or services in the application for
registration means that the mark is not defined in a vacuum
or in the abstract, but in connection with the goods or
services at issue. In re Boulevard Entertainment Inc., 67
USPQ2d at 1478 (“it is clear that [1-800-JACK-OFF and JACK
OFF] as used by Boulevard in connection with [entertainment
in the nature of adult-oriented conversations by telephone]
refer to masturbation”); In re Mavety Media Group Ltd., 31
USPQ2d at 1927 (the meaning of the word “tail” is
determined in the context of an adult entertainment
magazine); In re McGinley, 211 USPQ at 674 (J. Rich,
dissenting) (“I agree that the goods and services, as
recited, must be considered together with the mark”).
C. The commercial impression engendered by applicant’s
marks.

Applicant argues that the Examining Attorney
improperly dissected its marks CUMFIESTA and CUMGIRLS as
CUM FIESTA and CUM GIRLS (which are not at issue) and then
focused only on the word “cum” to support her contention

nor is it information which is “capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201(b).
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that the marks are scandalous or immoral.8 In essence,
applicant is contending that CUMFIESTA and CUMGIRLS are
coined terms with no recognizable meaning.
The problem with applicant’s argument is that the
commercial impression engendered by its marks are CUM
FIESTA and CUM GIRLS as two words. When the marks
CUMFIESTA and CUMGIRLS are used in connection with adult-
oriented materials consumers undoubtedly perceive them as
the two separate words. With respect to CUMGIRLS as used
on applicant’s specimen of use, shown below, the word “cum”
is beige and the word “girls” is pink thereby emphasizing
the separate commercial impression engendered by the
combination of those words. See Specialty Brands, Inc. v.
Coffee Distributors, Inc., 748 F.2d 669, 223 USPQ 1281,
1284 (Fed. Cir. 1984) (it is proper to look to the
specimens to determine the connotation or meaning of a
mark).

Likewise, with respect to the mark CUMFIESTA, the
specimen of record, shown below, emphasizes the separate
commercial impression engendered by the combination of the

8 Applicant’s Briefs, p. 3.
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two words. The tagline “Where Amateur Girls Get Creamed”
dispels any notion that CUMFIESTA will be perceived as a
unitary term.

Finally, we note that applicant originally filed its
applications to register the marks as two words: CUM
FIESTA and CUM GIRLS. This indicates that applicant viewed
the commercial impression engendered by its marks as two
words.
Although we must consider the marks CUMFIESTA and
CUMGIRLS in their entireties, in analyzing the marks, our
determination of whether they are scandalous or immoral
depends upon whether the word “cum” is vulgar as used by
applicant.
D. Representative excerpts from evidence regarding the
word “cum.”

1. First Office Actions
The Examining Attorney submitted the definitions of
the word “cum,” shown below, in the first Office Action:
a. RhymeZone (rhymezone.com)
Definitions of cum:
noun: the thick white fluid containing
spermatozoa that is ejaculated by the
male genital tract.
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b. Bartleby.com based on the American Heritage
Dictionary of the English Language (4th ed.
2000)

Cum
Noun: Vulgar Slang Variant of come.
2. October 9, 2007 responses
a. An article from the Sexual Intelligence
blog, published by Dr. Marty Klein
(sexualintelligence.wordpress.com)
(September 21, 2007). The author criticizes
the Board’s decision affirming the refusal
to register the mark YOU CUM LIKE A GIRL for
clothing under Section 2(a) because “‘cum’
is how real people talk.”
Some of my patients – the
healthier ones – use the
word. Professionals like me
– the more comfortable ones –
use the word while we’re
working. It’s part of how we
connect with patients,
letting them know we live in
a real world they recognize,
not in some perfect therapy-
land.

* * *

“Cum” is part of English.
People know what it means,
and they need a word that
says what “cum” says.

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b. An excerpt from the Ask The Experts column
appearing in the Teenwire.com website.
Your Question:
Dear Experts,
How can I tell if I’m
Ejaculating semen or pre-com?
What are the differences?
The Answer:
Related links include
Can I get pregnant from pre-
come?

When a guy cums, does that mean he’s
having an orgasm at the same time?

c. Definition of “cum” from the Compact Oxford
English Dictionary (AskOxford.com) as a
preposition meaning “combined with; also
used as; a study-cum-bedroom.”
d. An abstract describing a report entitled
“Beliefs about cum, condoms and intimacy
among young gay men (YGM) in the context of
rising HIV incidence in Vancouver” from a
2002 international conference on AIDS
appearing in the GATEWAY website of the
National Library of Medicine
(gateway.nlm.nih.gov/meetingabstracts).
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e. The entry for “cum” from the Webster’s
Online Dictionary website (websters-online-
dictionary.org). The exhibit provides the
following relevant information:
“Cum” is defined as a noun meaning
sperm;9

“Cum” first appeared in English
literature sometime before 1350;

Synonyms include “ejaculate,” “seed,”
“semen,” and “seminal fluid”; and,

“Cum” is frequently used as part of
Internet keywords,

f. An excerpt from a question and answer
feature from the website SexualHealth.com
with the following question:
Question:

When i (sic) cum/ejaculate
into my girlfriends (sic)…

g. An excerpt from an online advice column Go
Ask Alice (goaskalice-cms.org) sponsored by
the health services at Columbia University.
The title of the question is “I don’t care
if I cum, but he does.” The person with the
question refers to orgasm as “cum.” The
person responding to the question refers to

9 The source of the definition was WordNet (2001).
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orgasm as orgasm and makes to no reference
to the word “cum.”
h. An excerpt from a website advertising
SEMANEX, a product that purportedly will
increase the volume of ejaculate and
increase the intensity and power of male
orgasms. The advertisement references the
word “cum” as follows (emphasis in the
original):
Maybe you desire a bigger,
more impressive load of cum.

i. An excerpt from an online advice column
Scarleteen: Sex Ed for the Real World
(scarleteen.com). The topic inquired about
was whether a woman can become pregnant from
“pre-cum,” the fluid secreted before
ejaculation. “Pre-cum” is used by both the
questioner and the person responding to the
inquiry. But see Pregnant from pre-
ejaculation? from the “Trying to conceive”
forum in the ParentsConnect website
(parentsconnect.com) where a “guest” asks
whether it is possible for her to become
pregnant from “pre cum.” One person who
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responded stated that she thought the title
“Pregnant from Precum” was “disgusting”:
“Thats (sic) nasty and I think its called
Semen . . . not cum that sounds so
pornographic.” Another responder seconded
that sentiment: “I do agree that the word
‘cum’ is a bit vulgar, and would appreciate
if the OP would use a more proper term in
the future.” (Attached to response to
requests for reconsideration).
j. A statement by John Salvi, a prisoner on
death row in Virginia, appearing in the
January 6, 1995 issue of The Virginia-Pilot.
The statement included the following
reference to “cum”:
The next morning I was served
breakfast which consisted for
2 eggs scrambled one piece of
toast and gritts (sic) that
turned my stomach and I began
to get sick. The grits
appeared to have semen in
them, or commonly called cum.

k. An excerpt from an online advice column
entitled Alexis On The Sexes
(vita.mn/story). The question inquired
whether “cumming” is the same as having an
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orgasm. In her response, the author reports
on the etymology of the word “cum,” derived
from Sexy Origins and Intimate Things
written by Charles Panati.
Writers who addressed the
subject of sex search
endlessly for euphemisms for
bawdy or sexually explicit
words, which could not be
printed . . . an aroused man
“came at” his lover, in a
gentler sense, “came unto”
her . . . But the erotic
word, meaning both coitus and
ejaculate, was hard to spot
on the written page, since
“come” had so many innocent,
nonsexual meanings. It could
appear in a novel hundreds of
times and never have sexual
shading. Linguists believe
this is why writers began to
spell the word “cum” - - to
make it jump off the page.”

See also the discussion of the word in the
Online Etymology Dictionary (2001) submitted
by the Examining Attorney in the Final
Office Action.
3. Final Office Actions

a. Definition of “cum” from the dictionary at
Infoplease.com defining the word as “Slang
(vulgar) come.” See also Dictionary.com
(definitions from The Random House
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Unabridged Dictionary (2006), The American
Heritage Dictionary of the English Language
(4th ed. 2006), The Collaborative
International Dictionary of English v. 0.48,
Webster’s New World College Dictionary
(2005)10 and Merriam-Webster Online (merriam-
webster.com), and the dictionary application
at Encarta.msn.com. But see the definitions
derived from WordNet 3.0 where the word
“cum” is not identified as vulgar.11
b. An online article entitled Notes from a
Linguistic Mystic (linguisticmystic.com)
regarding automatic language translators
that censor words without regard to context
(e.g., “the Latin “Cum’ (‘with’) was
censored because it’s spelled like the
American slang word for ‘Semen.’”).
c. An excerpt from an online advice column
DearCupid.org discussing whether “cum” and
sperm are the same thing. One of the

10 Appearing in YourDictionary.com.
11 The definition of the word “cum” in Smut: American Sex Slang
(1992) compiled by Jim Norris is not particularly probative
because the editor simply compiled a list of American sex slang
and other words with a sexual connotation. The editor did not
make any attempt to characterize any of the entries.
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readers commenting on the issue provided the
following comment: “‘Cum’ is a derogatory
or slang term for ‘semen.’ It is also a
slang term for the act of
orgasm/ejaculation.”
d. An unauthorized copy of AOL’s terms of
service enforcement manual regarding the use
of “offensive” speech appearing on the
Electronic Frontier Foundation website
(w.2.eff.org).12 The excerpt provides the
following instruction regarding the word
“cum”:
Come/cum: Vulgar if used in
a possibly sexual manner.
Spelling doesn’t count. “Cum
over here” is fine. “I come
when I think if (sic) you”
isn’t.

e. An excerpt from the ALX Klive’s WorldTV Blog
(worldtv.com) in which the author quotes the
following from Wikipedia:
In Latin, cum means “with,”
but it can be a profane word
for “ejaculation” in English.

12 “The document was revealed by a former AOL ‘guide’ who blew the
whistle.”
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f. An excerpt from an English language
instruction site Antimoon.com where web
surfers can ask questions regarding the
English language. The relevant excerpt is
set forth below:
French “con” is related to
Spanish “coño”, as in
“cunnilingus”.

“Con” is a bad word in
French, but in Spanish it is
OK, as is the Latin word
“cum” which is a bad word in
English.

g. The hit list for the first 30 hits from a
search for the word “cum” on the GOOGLE
search engine. Nineteen of the 30 hits were
in the field of adult entertainment.13
h. A personal blog in which the author was
pondering the use of the word “cum” and
expressed her opinion that “it was a bit raw
for me.”
i. A personal blog in which the author rendered
an opinion regarding the comic side (intended
or unintended) of pornography. The author

13 The GOOGLE search results show that the word “cum” has a sexual
connotation. However, they are not probative as to whether the
word “cum” is vulgar. Just because a word is used in connection
with adult entertainment does not mean that it is a vulgar term.
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found the following text on an adult oriented
website to be hilarious despite its
vulgarity: “You haven’t seen a dude pack 14
inches like this, and the cum shot is just
straight up insane.”
j. The characterization of the word “cum” as a
word that should be used with extreme caution
in The Slangman Guide to Dirty English:
Dangerous Expressions Americans Use Everyday
(2003) by David Burke.
4. Requests for Reconsideration
a. Copy of Registration No. 2844606 for the
mark CUM TOGETHER, in typed drawing form,
for “prerecorded DVDs, video CDs and VHS
featuring adult content.”
b. A copy of the notice of allowance for the
mark CUMBRELLA, in standard character form,
for “condoms” (Serial No. 78622783).
c. A declaration from Marty Klein, Ph.D., a
marriage, family and sex therapist.14 Dr.
Klein is also a lecturer in the field of
sexuality. Based on his training and

14 Dr. Klein was previously referenced in connection with the
Sexual Intelligence blog.
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experience, Dr. Klein opined that “almost
nobody in a healthy mental or emotional
state would find ‘cum’ or ‘cum girls’ or
‘cum fiesta’ to be shocking, scandalous, or
immoral.” Dr. Klein also stated that the
word “cum” has become a colloquial
expression that is “polite, professional,
and proper.”
5. Response to requests for reconsideration
a. An excerpt from the website Stupid Questions
(stupidquestions.com).
Q. Is “cum” the noun and “come”
the verb?

A. If there’s one thing I truly
appreciate, it’s an attempt
to use vulgarity correctly.
William Safire would be
proud. And this is one of
our great vulgarities – a
four letter word that has
recently been chopped down to
three letters and become all
the dirtier for it. . . . It
is presumed that the “cum”
(mis)spelling is intended to
look crude, thus emphasizing
the sexual or vulgar meaning.

b. In an English language forum at English-
Test.net a person inquired as to the
propriety of an advertisement reading
“Receptionist cum HR Assistant required at
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IBI.” One person who responded advised the
writer not use the word “cum” because “it’s
more often used as an obscene word nowadays
than a preposition meaning ‘combined.’”
Based on our review of the evidence, we find that the
word “cum” when used in connection with adult oriented
entertainment means semen, ejaculation, or orgasm.
Applicant argues, on the other hand, that there are
alternate meanings, such as “with: together with, along
with, in combination with or functioning as (informal).”15
In addition, CUM FIESTA and CUM GIRLS could also mean “with
joy and festivity” or “with girls.”16 Applicant’s
arguments, however, are not supported by the record. The
evidence overwhelmingly demonstrates that “cum” means
semen, ejaculation, and/or orgasm when used in connection
with adult entertainment services and products. See for
example the GOOGLE hit list for the word “cum” wherein 19
of the first 30 hits were for adult entertainment services
or products and all the use of the word “cum” in all those
sites referenced semen, ejaculation or orgasm. It
stretches credulity to suggest that a substantial composite
of the general public, or patrons of adult entertainment

15 Applicant’s Amended Briefs, p. 4.
16 Applicant’s Amended Briefs, p. 4.
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services in particular, will perceive any alternative
connotations of the word “cum” as used in applicant’s
marks.
Furthermore, we find that a substantial composite of
the general public perceives the word “cum” to be vulgar
when used in connection with adult entertainment services
and products and, therefore, scandalous and prohibited from
registration pursuant to Section 2(a) of the Trademark Act.
We base this finding on the following evidence:
1. All the dictionary definitions, except for the
definition from WordNet and RhymeZone, identify “cum” in
connection with semen or orgasm as a vulgar term.
“[D]ictionary definitions represent an effort to distill
the collective understanding of the community with respect
to language and thus clearly constitute more than a
reflection of the individual views of either the examining
attorney or the dictionary editors.” In re Boulevard
Entertainment Inc., 67 USPQ2d at 1478;
2. In many of the online forums and blogs,
participants characterized the word “cum” as vulgar (e.g.,
ParentsConnect website (parentsconnect.com), DearCupid.org,
ALX Klive’s WorldTV Blog (worldtv.com), Antimoon.com,
Stupid Questions (stupidquestions.com));
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3. The characterization of “cum” as a word that
should be used with extreme caution in The Slangman Guide
to Dirty English: Dangerous Expressions Americans Use
Everyday (2003) by David Burke; and,
4. The websites discussing censorship online and
referencing the word “cum” as a word subject to censorship.
Linguistic Mystic and Electronic Frontier Foundation.
Applicant contends, however, that “[t]he record
evidence, consisting of popular sources, news media, and
the expert opinion of a mental health professional, clearly
shows that contemporary society is fully tolerant of the
term ‘cum,’ as a substitute for orgasm.”17 While that may
be true, the evidence in the record highlighted above also
shows that a substantial composite of contemporary society
finds the use of the term “cum” to be vulgar. Thus, the
Examining Attorney has met her burden of proof.
We note the testimony of Dr. Marty Klein, marriage,
family and sex therapist and lecturer on sexuality. As
indicated above, Dr. Klein opined that based on his
experience and training, the word “cum” has become a
colloquial term meaning orgasm or ejaculation. While it
may be true that in his practice, the use of the word “cum”

17 Applicant’s Amended Briefs, p. 6.
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is considered “polite, professional, and proper,” as well
as facilitating therapy, it does not diminish the fact that
in other walks of life and in other contexts, a substantial
composite of contemporary society finds the word “cum” to
be vulgar. See In re Tinseltown, Inc., 212 USPQ at 866
(“the fact that profane words may be uttered more freely
does not render them any the less profane”).
Finally, we note that applicant has made of record
Registration No. 2844606 for the mark CUM TOGETHER, for
“prerecorded DVDs, video CDs and VHS featuring adult
content” and Serial No. 78622783 for the mark CUMBRELLA for
“condoms” (notice of allowance issued). It is well settled
that the Board must decide each application on its own
merits, and decisions regarding other registrations do not
bind either examining attorneys or this Board. In re
Boulevard Entertainment Inc., 67 USPQ2d at 1480; In re Nett
Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001). The fact that, whether because of administrative
error or otherwise, some marks have been registered even
though they may be in violation of the governing statutory
standard does not mean that the U.S. Patent and Trademark
office must forgo applying that standard in all other
cases. In re Boulevard Entertainment Inc., 67 USPQ2d at
1480.
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Upon due consideration of the entire record, we find
that the marks CUMFIESTA and CUMGIRLS as applied to
“entertainment services in the nature of photographic
images, pictures, video and audio recordings, and
information regarding adult oriented subject matter
transmitted through a global computer network” would be
offensive to a substantial composite of the general public
and is therefore prohibited by Section 2(a) of the
Trademark Act.
Decision: The refusals to register are affirmed.