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The Federal Circuit has concluded that it can, as a matter of law, determine when a trademark is not entitled to federal trademark registration because the mark is vulgar. In doing so, the court appears to have ignored or changed the standard of proof requirement that has been part of the law for nearly 20 years. The recent opinion from the Federal Circuit, In re Marsha Fox, decided Dec. 19, 2012, is one that counsel should consider when seeking registration for trademarks that can have multiple meanings, one of which may present risqué overtones.

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