YNOT – The U.S. Patent and Trademark Office has rejected a trademark application by offbeat porn-satire producer Lampoontang. According to the company, the decision threatens to affect not only adult-oriented businesses, but also any other business with a trade name whose meaning might be misconstrued or misinterpreted by a federal employee with an apparent conservative bias.
According to Lampoontang’s attorney, the trademark rejection exhibited “scant and dubious reasoning.” Consequently, the company has filed an appeal before the Trademark Trial and Appeal Board.
Lampoontang produces hardcore pornography focusing on the satirical in an attempting to exploit the humor at the intersection of politics, religion and graphic sex. The company’s most recent film, Saddleback Nation, mocks the practice — reported to occur among teens in uber-conservative Christian sects — of having anal sex to preserve their technical virginity. The company’s next project is a spoof of Islam, Burqakke: Vixens Under the Veil.
Parent company Mixed Message Media Inc. (the irony of which is inescapable) filed to protect its Lampoontang brand in October 2009. The company received an almost immediate rejection, summarily denying the application on what attorney Marc Randazza called “questionable legal grounds.” In September 2010, Randazza returned the USPTO examiner’s opening salvo with a first appeal, stating his client’s disagreement with the trademark examiner’s opinion that “the proposed mark is disparaging to women and presents a likelihood of confusion with another registered mark, Lampoon.”
Standard practice at the USPTO is to have the original examiner respond to appeals.
“Since the original examiner was acting primarily out of bias against the content that Lampoontang produces rather than the merit of the application itself, the second rejection was, if anything, faster,” Randazza said.
Lampoontang’s current appeal, filed Tuesday at the highest level in the USPTO hierarchy, argues that the examiner’s decision represents a legal error and requests the USPTO board reverse the decision.
Among its most amusing arguments, the appeal notes similarly potentially offensive trademarks have been awarded to companies outside the adult entertainment industry. In the brief, Randazza cites Buddha Beachwear as an example of a mark upon which the input of the potentially offended group was sought before making a decision. Randazza suggested the USPTO solicit the input of women before denying the registration of Lampoontang.
In addition, the brief notes, federal courts have upheld ribald trademarks as constitutionally protected commercial speech. In a case involving Bad Frog Brewery, the Second Circuit Court of Appeals upheld the trademark, even though the frog in the brewery’s logo clearly was “giving the finger” to anyone who cared to look. In that case, “prohibition on use of so-called ‘offensive’ trademarks did not advance the stated governmental purpose of protecting children from vulgarity…,” according to the Lampoontang brief.
Lampoontang President Doug Diamond said he is disappointed by the USPTO’s actions so far, but he is proud that his company has a role to play in fighting conservative bias.
“We had hoped that the end of the Bush administration marked the end of social conservatism and superstitious beliefs taking priority over a rigorous application of the law, legal precedent and the free-speech rights guaranteed by the Constitution,” Diamond said. “Sadly, bureaucracy moves slowly, forcing us to fight the battles of the past over and over again to protect our freedoms from those who would abridge them.”
Win or lose, the appeal has the potential to affect the direction of future trademark rejections as well, Randazza said.
“I believe that Section 2(a) of the trademark act is unconstitutional,” he said. “I further believe that it has been used by examiners with personal agendas in order to discriminate against adult entertainment companies. I am proud that Lampoontang has given us the authority to vindicate its rights in this case.”
The rejection appeal may be read in its entirety here (PDF). The original brief may be read here.
