Marsha Fox

Trademark Trial and Appeal Board

Nov 15, 2011

No. 76315793 (T.T.A.B. Nov. 15, 2011)

Mailed:
November 15, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fox
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Serial No. 76315793
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Marsha Fox pro se.

Karanendra S. Chhina, Trademark Examining Attorney, Law
Office 114 (K. Margret Le, Managing Attorney).
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Before Zervas, Bergsman and Shaw,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

This appeal from the final refusal of the Trademark
Examining Attorney involves 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.” Marsha Fox (“applicant”)
seeks to register a use-based application for the mark COCK
SUCKER and a rooster design, shown below, for “chocolate
suckers molded in the shape of a rooster,” in Class 30.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76315793

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The Examining Attorney contends that “COCK is defined,
in relevant part, as ‘penis,’ and SUCKER as, ‘one that
sucks…,’ with the combined meaning being ‘one who sucks a
penis.’”1 (Emphasis in the original). Applicant argues,
on the other hand, that the refusal is wrong because “when
the consumer studies the product as a whole, the rooster
shaped sucker packaged in a clear bag with a tag affixed to
it that bears the image of a rooster, a very different and
far more logical conclusion is reached.”2
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). 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

1 Examining Attorney’s unnumbered brief page 7.
2 Applicant’s Brief, p. 3.
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Electrik Lorenz A.G., 371 F.2d 870, 152 USPQ 563, 566 (CCPA
1967). To prove that that the mark COCK SUCKER and a
rooster design is scandalous or immoral, it is sufficient
if the Examining Attorney shows that the term is vulgar.3
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); In re Luxuria s.r.o., 100 USPQ2d 1146, 1148
(TTAB 2011). “[T]he threshold for objectionable matter is
lower for what can be described as ‘scandalous’ than for
‘obscene.’” In re McGinley, 211 USPQ at 673 n.9.
In determining whether a particular designation is
scandalous or immoral, we must consider the mark in the
context of the marketplace as applied to applicant’s
description of goods. 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

3 While the cases define scandalous and immoral in additional and
more comprehensive terms, the word “vulgar” captures the essence
of the prohibition against registration and, therefore, we shall
use “vulgar” to facilitate our analysis and discussion.
Serial No. 76315793

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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 evidence.

1. Dictionary definitions defining the word
“cocksucker” as “one who performs fellatio.”4 The term is
classified as obscene in the Merriam-Webster OnLine
dictionary, highly offensive in the MSN.Encarta online
dictionary, a pejorative term in the Wictionary, wiki-based
open content dictionary (online), vulgar in the Wordsmyth

4 July 8, 2008 Office action.
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online dictionary, The American Heritage Dictionary of the
English Language (4th ed. 2006) and the Random House
Unabridged Dictionary (2006). “Cocksucker” is also defined
as an insulting term of address for people who are stupid,
irritating or ridiculous.5
2. Dictionary definitions defining the word “cock,”
inter alia, as a male chicken or as a penis.6 When the word
“cock” is used to refer to a penis, it is considered vulgar
according to the Merriam-Webster OnLine dictionary,
Webster’s New World College Dictionary (2009), the
Wictionary, and The American Heritage Dictionary of the
English Language (4t ed. 2000) and “taboo” and “highly
offensive” by the MSN.Encarta online dictionary.
3. Dictionary definitions of the word “sucker”
defined, inter alia, as “a person or thing that sucks” or a
“lollipop.”7
4. A photographs of applicant’s products on display
in clear plastic packaging and “in small replicas of egg
farm collecting baskets.”8

5 Id.
6 August 17, 2009 Office action.
7 Id.
8 Applicant’s June 27, 2002 response.
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5. Letters from “members of the general public” to
the effect that applicant’s mark COCK SUCKER is not immoral
or scandalous.9
C. The commercial impression engendered by applicant’s
mark.

The word portion of applicant’s mark, COCK SUCKER,
when used in connection with applicant’s products, creates
a double entendre: one meaning is one who performs
fellatio; and the other meaning is a rooster lollipop.10
Applicant concedes that her “application is for a mark that
has words that imply a double entendre.”11 In this regard,
“[i]n developing the Cock Suckers, [applicant] recognized
the need to sway the mind’s eye with the use of artwork.”12
Thus, the mark was created with the intent to make an
association with the sex act. In this regard, we
paraphrase one of applicant’s comments regarding the BIG
PECKER case: “Obviously anyone pubescent age and older who
speaks English, and is familiar with American slang would

9 Applicant’s April 27, 2009 response.
10 A “double entendre” is a term that has “1. a double meaning.
2. a word or expression used in a given context so that it can be
understood in who ways, esp. when one meaning is risqué.” The
Random House Dictionary of the English Language (Unabridged), p.
587 (2nd ed. 1987).
11 Applicant’s Brief, p. 5. At the same time, applicant noted
that the mark includes the design of a rooster “which serves the
purpose of guiding the potential purchaser to the less risqué of
the two definitions.” Id.
12 Applicant’s Brief, p. 9.
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immediately think of [oral sex] when confronted with the
term [COCK SUCKER].”
The term “Cocksucker” is uniformly identified as a
vulgar term in dictionaries and the term “Cock Sucker,”
with a space between the two words, has, for our purposes,
the same meaning. We give very little weight to
applicant’s argument COCK SUCKER has a different meaning
than COCKSUCKER. Any consumer that recognizes the double
entendre is unlikely to make a distinction, if any, between
the meanings of COCK SUCKER and COCKSUCKER. Cf. In re
International Business Machines Corp., 81 USPQ2d 1677, 1679
(TTAB 2006) (“we see no difference in the meaning or
connotation of ‘e-server’ and ‘eserver,’ and consider them
to be an abbreviated form of ‘electronic server.’”); Henry
I. Siegel Co., Inc. v. Highlander, Ltd., 183 USPQ 496 (TTAB
1974) (“Turning to the terms ‘h.i.s.’ and ‘He.’, they are
alike in that ‘h.i.s.’ would suggest to purchasers the
possessive form of the pronoun ‘he’, in essence,
applicant's mark.”).
The goods identified in the application are lollipops
in the shape of a rooster and applicant describes them as
innocuous and whimsical. Applicant explained that she
found that the products were popular at the University of
South Carolina football games because the mascot is the
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Gamecock. Likewise, at Jacksonville State University in
Florida, whose mascot is the Gamecock. Thus, the consumer
statements submitted by applicant tend corroborate her
argument that some consumers find her mark to be
inoffensive. Nevertheless, the lollipops are available to
all consumers, including parents shopping with children.
Moreover, even if some consumers find the product whimsical
and innocuous, they may still find that the mark is vulgar.
Finally, applicant argues that the facts in her
application so closely parallels the facts in In re
Hershey, 6 USPQ2d 1470 (TTAB 1988) that her mark should be
approved for publication. In Hershey, the applicant
applied to register the mark BIG PECKER for t-shirts.
Unlike in the case before us, the Board in Hershey found
that the evidence was “at best marginal to demonstrate that
the mark is a vulgar, slang reference to male genitalia and
would be recognized as such a reference by a substantial
composite of the general public.” 6 USPQ2d at 1471. To be
clear, we find that the evidence supports the fact that the
term COCK SUCKER is vulgar and, therefore, is precluded
from registration under Section 2(a) of the Trademark Act.
Decision: The refusal to register is affirmed.