In what is destined to be a classic exposition of what constitutes an immoral, scandalous or vulgar trademark, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit closed out 2012 by ending a woman’s 11-year effort to register her rooster-shaped, chocolate lollipops, displayed in retail outlets in small replicas of egg-farm collecting baskets, under the trademark “COCK SUCKER.” Marsha Fox’s business primarily targeted fans of the University of South Carolina and Jacksonville State University, both of which have gamecocks as athletic mascots.
Writing for the panel in In re Marsha Fox, Judge Timothy Dyk, who may well deserve the “straight face of the year” award, carefully examined dictionary definitions and statutory language to conclude that the distinction between “COCKSUCKER” and “COCK SUCKER” is a “distinction without a difference.” The mark, he added, is “precisely what Fox intended it to be: a double entendre, meaning both ‘rooster lollipop’ and ‘one who performs fellatio.’ ” If Fox is correct that her mark brings nothing more than a smile to a purchaser’s face, he wrote, “The market will no doubt reward her ingenuity. But this does not make her mark registrable.” Marcia Coyle
GROUP HONORS KAGAN FOR HER FIERY DISSENT
